The event, in its fifth year, is designed as a provocation to the Internal Revenue Service in order to challenge the legal prohibition on tax-exempt organizations engaging in partisan politics under the Johnson Amendment. The pastors plan to record their sermons and send them to the IRS in order to encourage an audit - which they would then challenge in court in hope of getting the law to be declared unconstitutional. Garlow estimates that 1,500 or more pastors will participate.
I spoke to Garlow on Thursday. A transcript of our conversation, which has been condensed and lightly edited for clarity, is below. A Pew survey earlier this year found that a majority of Americans (54 percent) believe that churches should keep out of politics, while 40 percent say religious institutions should express their views on social and political matters.
How, in your mind, does the law violate religious liberty?
GARLOW: The Johnson Amendment in a sense changed 166 years of freedom in the pulpit, when there was no speech restrictions put on pastors at all. That, of course, changed on July 2, 1954, and the history of it very simply is that Lyndon Baines Johnson, then senator, returned from Texas upset with two businessmen who had opposed him through their 501(c)3s - their not-for-profit corporations. And since there was a tax overhaul going through the Senate at that time, Johnson added what would become later known as the Johnson Amendment, a very short statement that 501(c)3s cannot endorse, directly or indirectly, or oppose a candidate.
There are 29 different categories of 501(c), but the speech restriction was put only on 501(c)3, that one category. Johnson's chief legislative aide would later admit that they didn't have churches in mind at all, he was directly wanting to impact the two businessmen in Texas, but churches obviously were swept into it. And that changed the dynamics. Prior to that time it had never been questioned whether or not the church had full, complete separation from the state, and there was no capacity on the part of the government to control or censor any kind of speech on any topic. Religion, freedom of religion, freedom of speech, guaranteed with the first amendment was unquestioned at that point. We have evidence of pastors all the way back to Thomas Jefferson's election, 1800, where they spoke out very strongly from the pulpit, either in opposition or in favor.
But churches can engage in partisan activities now, if they're willing to give up their tax-exempt status. Would you be willing to give up that status in exchange for the right to endorse a candidate from the pulpit?
GARLOW: The presupposition of your question is in err. There was no trade-off ever done, there was no exchange that ever took place where pastors said, 'OK, we'll be silent on political speech in exchange for tax exemption.' That is not at all the way it occurred. The tax-exempt status occurred from our founding fathers. That predated 1954 by a long time. It predated the founding of the IRS - that was around 1862. Tax-exempt status stems from the founding fathers' understanding of the separation of church and state. The Supreme Court would rule that to tax the church would be able to control or destroy the church.
Isn't there a concern, though, that if the church has a tax exemption and can also be an explicitly political organization, then the church is getting a subsidy for its free speech? Something other folks that are engaged with an explicitly political organization that's not affiliated with a church aren't getting?
GARLOW: Quite the contrary. There are, as I indicated, 29 different categories of 501(c). And they don't have speech restrictions on them. A labor union, for example, does not. There's a host of other organizations. And if you're going to have the government dictating to the church what it can say, then you're going to have to have a device for monitoring. If you're going to have to monitor, there's 300,000 churches, you're going to send pulpit police to go around and check what pastors are saying. The core of the question is who decides what's going to be said on the pulpit. And it's either going to be the government, or it's going to be that local pastor and that local congregation. And we believe that the Constitution grants to those pastors and their congregations that authority, based on the first amendment.
Is there any downside to inviting an IRS audit?
GARLOW: Well I suppose there would be any time you go to court. The challenge is that it's not been to court. It is intriguing, is it not, that in 58 years the law has not been successful in getting it to court? And why would that be. When the IRS challenges a church, some churches simply say, 'ok, ok, we won't do that again.' When a church lawyers up and says, 'we'll meet you in court,' what has happened is the IRS has simply at that point backed away after a period of time and said we're going to close your case.
Part of the reason that an administration or a government wouldn't want to be critical of a church that does this is they wouldn't want to be accused of going after a religion. You and your supporters are largely conservative. Is this at all in any sense about the notion that the Obama administration is engaging in a 'war on religion'? And if they went after you, would it amount to a 'war on religion'?
GARLOW: Well, you're incorrect. This first occurred before Obama was even elected. This was started before the 2008 election. So this didn't start because of Obama. And you're also incorrect in the assumption that this is only for conservative churches. We have a number of churches of a liberal mindset signed up for it, and we strongly encourage them to do so. Our contention would be a pastor could speak out on the opposite side of the issues that I might share. The point is he has freedom in the pulpit as much as I do. Jeremiah Wright - I disagree with his content, but I support totally under the First Amendment his right to say what he wants from his pulpit, and what he feels that God has directed him to say. That is what freedom of religion and freedom of speech is all about in this nation.
A pastor now can talk explicitly about an issue and allow people to draw their own conclusions - they can say, for example, that abortion is murder. Why isn't it enough to talk about the issues and let people come to their own conclusions? Why do you have to be able to specifically say, 'this is the candidate you should support'?
GARLOW: And why would you suggest that I couldn't? Why should you limit my speech at all?