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Can religious leaders endorse political candidates? Can they talk about religious issues from the pulpit? Does this violate the "separation of church and state"?  A surprising number of Americans probably believe that the answers are "no," "no," and "yes." A lawsuit filed in federal court last week by the Freedom From Religion Foundation alleges that the IRS has been falling down on the job in not going after religious leaders who refuse to stay out of politics. According to an AP story the foundation argues that

The IRS is not enforcing the federal tax code, which prohibits tax-exempt religious organizations from electioneering. Not enforcing it is a violation of the establishment clause of the First Amendment and a violation of equal protection rights because the same preferential treatment is not provided to other tax-exempt organizations such as the Freedom from Religion Foundation, the lawsuit contends.

What took them so long? Since 2008, pastors across the country have participated in Pulpit Freedom Sunday, in which they speak about political issues from the pulpit and, if they are so inclined, endorse political candidates. Almost 1500 pastors participated this year, most of them leaders of evangelical churches. As Mark Harris, a Baptist pastor in Charlotte, NC, told his congregation:

"I don't feel I'm breaking the law," Harris said before addressing a congregation of almost 1,000. "I am speaking as a pastor and as a citizen of the United States where we have that freedom of speech."

Rather than try to fly under the radar screen, the pastors who participate actually send copies of their sermons to the IRS, trying to provoke a reaction from the agency so that this issue can finally be resolved in court. They believe that the tax code is in violation of the Constitution's free speech protections and would like the court's to clarify the situation.

The Freedom From Religion lawsuit also cites an order from the Peoria, IL, Catholic bishop who asked all priests in his diocese to read the following statement to their parishioners: "Catholic politicians, bureaucrats, and their electoral supporters who callously enable the destruction of innocent human life in the womb also thereby reject Jesus as their Lord." The suit also mentions full-page newspaper ads from the Billy Graham Evangelistic Association asking Americans to vote along biblical principles.

In the meantime, many pastors and citizens seem to misunderstand the issue and err on the side of caution, avoiding any intermingling of religion and politics. The same thing has happened in public schools where a prohibition on school-sponsored prayer has led teachers to believe they cannot teach students about the Bible, even in a purely scholarly manner. And they cannot allow any student-sponsored displays of religiosity. As the court's messages about the separation of church and state trickle down into our local institutions they tend to become more restrictive than intended. These are people who don't want to get in trouble with the IRS. They don't want to be subject to lawsuits. And so they tread carefully, perhaps too carefully.

Since 2009, when the IRS lost a case against a pastor in Minnesota who endorsed Michele Bachmann for Congress, the agency has mostly laid low. And now the Freedom From Religion Foundation wants to know why. It is bad for a law-abiding society to have laws on the books that are unenforced. If this part of the tax code is unconstitutional, let's find out and remove it permanently. Pastors should not have to censor themselves because of a concern that the tax man is nearby.

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