During a sermon in the cathedral church of St. Mary’s in Peoria, Ill., on April 14, Bishop Daniel Jenky compared what he called the “extreme secularist agenda” of President Obama with the anti-Catholic programs of, among others, Hitler and Stalin, two of the 20th century’s worst mass murderers. In the same month, Archbishop J. Peter Sartain of Seattle, Wash., launched a signature drive in every parish of his archdiocese to put Referendum 74 on the statewide ballot. The referendum would repeal Washing-ton’s new same-sex marriage law.
What Bishop Jenky did is called “electioneering.” He intervened in a political campaign in opposition to one of the candidates. What Archbishop Sartain did is called “lobbying.” He intervened in an attempt to pass legislation. Both men did so using their episcopal office. Bishop Jenky spoke from the pulpit of his cathedral during Mass. Archbishop Sartain sent his Referendum 74 letter out on archdiocesan stationery. There is no doubt that both men were acting in their official capacities on behalf of the church and not as Citizen Jenky and Citizen Sartain.
Why does that make a difference? Quite simply because tax-exempt churches—on whose behalf Bishop Jenky and Archbishop Sartain were acting—are under serious legal restrictions when it comes to electioneering and lobbying activities. Churches cannot electioneer at all. The prohibition is absolute. They may not intervene in any way in a campaign for political office either in favor of a candidate or in opposition to one. With lobbying, an attempt to influence legislation, there is some wiggle room. There the law allows churches to lobby, but only to an “insubstantial” degree.
A Privilege, Not a Right
What law is this? It is one that every American is familiar with—the Internal Revenue Code. Section 501(c)(3) of the tax code, the same section that grants churches and other nonprofit charitable organizations their exemption from having to pay federal income taxes, says that as a condition of being tax exempt, organizations like churches may not electioneer or lobby (except insubstantially).
The restrictions of Section 501(c)(3) have survived constitutional challenge in numerous instances because exemption from taxation is a government-granted privilege, not a right, and as such the government is free to put legitimate conditions on it. The U.S. Court of Appeals for the 10th Circuit said it best in Christian Echoes National Ministry Inc. v. United States (1972), a case initiated by a religious organization that claimed the tax code’s electioneering restrictions violated its First Amendment free-speech rights:
In light of the fact that tax exemption is a privilege, a matter of grace rather than right, we hold that the limitations contained in Section 501(c)(3) withholding exemption from nonprofit corporations do not deprive Christian Echoes of its constitutionally guaranteed right of free speech. The taxpayer may engage in all such activities without restraint, subject, however, to withholding of the exemption or, in the alternative, the taxpayer may refrain from such activities and obtain the privilege of exemption.
Exemption from federal income taxes is a form of taxpayer subsidy. The church gets to keep the money it would otherwise have to pay the federal government as income taxes in order to use that money for religious and charitable purposes instead. But those forgone federal revenues must be made up by the taxes that the rest of us do pay. There is even more to the subsidy. Churches, like most other Section 501(c)(3) charitable organizations, can also attract tax-deductible gifts under Section 170 of the Internal Revenue Code. Individual taxpayers can take a deduction on federal income taxes for the gifts they give their churches. In effect, they are paying less tax so that the church can more easily raise funds. This means that churches actually receive a double taxpayer subsidy—by not having to pay their own federal income taxes and by receiving gifts that are deductible on the donor’s federal income taxes.
When Congress adopted the limitations on political activities in Section 501(c)(3), it was simply saying that it did not want taxpayer-subsidized charitable dollars being used for political purposes, which is a rather reasonable restriction. Who among us thinks that politics accomplishes any charitable purpose? The estimable federal judge Learned Hand said it best, “Controversies of the [political] sort must be conducted without public subvention. The Treasury stands apart from them.” Exactly. Our tax dollars should not be used to subsidize partisan political activities of tax exempt organizations.
At the same time, by limiting the political influence of tax-exempt churches, Congress was also honoring one of the basic tenets of our nation’s founding, namely the separation of church and state. Allowing churches to use tax-subsidized dollars for political activities would link church and state in a way that the founders feared. They knew that a mix of religion and politics would be fatal to our nascent republic. In his “Memorial and Remonstrance Against Religious Assessments,” James Madison, the author of the First Amendment, which created free exercise rights, said, “[Clergy] have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people.” He also pointed out in the Federalist Papers, No. 10, that “a zeal for different opinions concerning religion, concerning government and many other points...have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good.”
Crossing the Line
Bishop Jenky’s odious comparison and Archbishop Sartain’s support for an initiative to repeal the civil rights of a significant sector of our fellow citizens do seem disposed “to vex and oppress,” to use Madison’s words. Bishop Jenky’s electioneering is a clear violation of the tax code. There is a campaign for president going on this year, and Bishop Jenky attacked one of the candidates from his cathedral pulpit. The question of Archbishop Sartain’s lobbying is less clear.
Churches can certainly advocate on social issues they perceive to have a moral component without violating the tax code. But once a church’s advocacy goes beyond issues and, without a legitimizing invitation from the legislature itself, addresses a pending law—urging voters directly (called grassroots lobbying) or urging legislators to act (called direct lobbying)—a line has been crossed. Advocacy for or against pending laws and referendums is lobbying, pure and simple, and tax-exempt churches may not use tax-exempt dollars to affect the legislative process, except “insubstantially.”
There is the rub for Archbishop Sartain. Depending upon how many church resources he is using (staff time, church publications, advertisements and so on, backed by tax-exempt church dollars) to get Referendum 74 on the statewide ballot, what he is doing may or may not be considered “substantial” lobbying. Using even one tax-exempt church dollar, though, to stir up opposition to the legally recognized civil rights of others is objectionable, no matter what the tax code says about it.
A practical problem with our bishops’ violating the tax code’s restrictions on political activities is that the Internal Revenue Service has only limited means to stop them. The I.R.S. can either use the nuclear option and revoke the archdiocese’s tax exemption, which is so drastic as to be unthinkable, or it can use the fly-swatter option and fine the diocese for the amount it spent on the prohibited political activity under Section 4955 of the tax code. For example, what was the cost to the Diocese of Peoria of Bishop Jenky’s political homily? The cost of opening up the cathedral that day? The utility costs? A prorated portion of the bishop’s salary? We are talking about a small amount, hardly the kind of fine that hurts. So legal penalties do not work in such cases. Most Americans might think the simple fact that this is the law would restrain politically overzealous bishops, but that has not worked either.
What might work? How about the bishops’ own self-interest? On any given Sunday in the United States, fewer than three out of 10 Catholics are in church, and the Catholics who are not there are mostly young. In a survey conducted among 16- to 29-year-olds by the Barna Group in 2007, nine of this age cohort’s top 12 perceptions of Christianity were not good ones. They found Christianity to be judgmental (87 percent), hypocritical (85 percent) and too involved in politics (75 percent). That is some troika.
In another 2012 survey of college-age millennials (18- to 24-year-olds) conducted by the Public Religion Research Institute and Georgetown University’s Berkley Center for Religion, Peace and World Affairs, it was found that 64 percent think that “anti-gay” is an accurate description of Christianity today. An almost equal portion in this survey, 62 percent, also find modern Christianity to be “judgmental.” Now some readers might opine that religion is supposed to be judgmental; it is supposed to distinguish right from wrong and that these surveys reveal only that young people prefer the relativism of their own generation to the church’s rules. Maybe. But perhaps we should also recall that we worship a Lord who said, “Do not judge, so that you may not be judged” (Mt 7:1).
In 2008, during the last presidential election, the Pew Research Center conducted a study on church endorsement of candidates for political office. The results are revealing. When asked if churches should endorse one candidate over another, the Pew poll found that in the total population of those polled, 29 percent said yes, but 66 percent said no. When the breakdown was by faiths, among all Catholics, 30 percent said yes and 67 percent said no. Among white, non-Hispanic Catholics, 26 percent said yes and 70 percent said no. Those are rather overwhelming numbers, indicating that bishops who intervene in politics are working against their own interests. Their people are not going to hear them.
If the bishops’ politics are keeping people, especially young people, out of the pews, then perhaps they need to ask themselves a critical question: What is more important to them, political goals or the salvation of souls? If our bishops choose to ignore the law’s restrictions on their political activity, they should at least listen to the Lord, who talked about leaving the 99 sheep to go find the lost one (Lk 15:5). In the final analysis, our bishops will not be judged on how many presidents they helped to elect or how many laws they helped to pass, but on how many of those lost sheep they rescued.