TIME Contributor Slams 'Rebel Pastors' For Transgressing 501(c)3 Limitations on Pulpit Speech

Pastors -- almost all of them conservative Christian ones -- who participated in "Pulpit Freedom Sunday" on October 7 are not free-speech crusaders but rather simply "rebels" against sensible U.S. tax policy, Yale law professor Adam Cohen complained in an October 16 TIME Ideas blog post. Cohen groused that The participants are trying to bait the IRS into coming after them so they can mount a legal challenge to the politics ban. So far, no luck, though they show no signs of quitting.

Cohen -- who once insisted the First Amendment's free speech guarantees are "vague"-- complained that pastors of tax-exempt churches issuing approval or condemnation of political candidates or legislation from the pulpit would in some way constitute a government subsidy of that political view. That's a popular view among liberals but it is a fundamentally-flawed premise that only makes sense if you believe that tax monies fundamentally BELONG to the government in the first place.

American political theory from our nation's founding period onward holds that the government derives its powers from the consent of the governed. As such, the government's ability to finance its operations via taxation is limited by the consent of the governed. Government policy on tax exemption, therefore, is the people, acting through their elected agents in the Congress, holding that some organizations that fit certain criteria should be exempt from taxation.

Doing so is not a subsidy of those organizations' activities but rather a limitation of the government's taxing power so as to allow those organizations a greater chance of flourishing. "[T]he power to tax involves the power to destroy," Chief Justice John Marshall noted in the landmark Supreme Court case McCulloch v. Maryland. Offering tax exemption to houses of worship is thereby a recognition by the Congress that taxation can have destructive consequences on houses of worship.

But aside from his subsidization strawman, Cohen papers over the legitimate constitutional grievances that the Alliance Defending Freedom wishes to argue in court. Cohen is correct that the ADF is itching for a court battle, because it needs a lawsuit to argue their case, they hope, ultimately before the Supreme Court.

The long and short of the ADF's argument is that no legislation by Congress can force an institution to accept the deprivation of constitutional protections (emphasis mine):

Pastors who register for the event commit to preach sermons that present biblical perspectives on the positions of electoral candidates. In so doing, they will exercise their constitutionally protected freedom to engage in religious expression from the pulpit despite an Internal Revenue Service rule known as the Johnson Amendment that activist groups often use to silence churches by threatening their tax-exempt status.

“Pastors should decide what they preach from the pulpit, not the IRS,” says Senior Legal Counsel Erik Stanley. “It’s outrageous for pastors and churches to be threatened or punished by the government for applying biblical teachings to all areas of life, including candidates and elections. The question is, ‘Who should decide the content of sermons: pastors or the IRS?’”

“No government-recognized status can be conditioned upon the surrender of a constitutionally protected right,” Stanley adds. “No one would suggest a pastor give up his church’s tax-exempt status if he wants to keep his constitutional protection against illegal search and seizure or cruel and unusual punishment. Likewise, no one should be asking him to give up his church’s tax-exempt status to be able to keep his constitutionally protected right to free speech.”