A tax law primer as Maryland churches are lobbied to oppose marriage equality

Image has not been found. URL: http://images.americanindependent.com/2010/07/MahurinReligion_Thumb.jpgAs The American Independent recently reported, Maryland groups against same-sex marriage legalization in the state are informing churches how to influence legislation without violating tax rules codified by the Internal Revenue Service (IRS).

Groups and key delegates of Maryland’s General Assembly that are against marriage equality have targeted churches, especially those in African-American communities, with the hope of rallying against the bill ahead of the 2012 legislative session, when the General Assembly will resume consideration of legislation that failed to come to a vote in 2011.

The IRS is firm on rules preventing churches from endorsing specific candidates during elections. But when it comes to promoting legislation, the law reads much more loosely. In essence, religious leaders are at liberty to preach from the pulpit in favor or in opposition to political issues and upcoming legislation so long as specific candidates are not endorsed.

Ira C. Lupu, professor of law at George Washington University Law School, said the law is written to ensure limitations and fairness among organizations with tax-exempt status, like churches.

“The idea is there are limitations,” Lupu told TAI. “If I want to stop Barack Obama, and I donate money, [my contribution should not be] tax-deductible. It would give [tax-exempt groups] an unfair advantage.”

But with social-issue legislation, it’s different. Lupu said that even among lawyers and law students, tax law on this issue can appear tricky, so he tries to make it simple: “Churches cannot use their resources to urge to vote for or against a particular candidate,” Lupu said. “Churches can encourage members from the pulpit to take a stand [on an issue].”

A gray area emerges, he said, if the line between endorsing a piece of legislation and endorsing a candidate pushing that particular issue is muddied. Another questionable area involving churches’ legislative activity has to do with raising money for legislative campaigns.

If a church spends a large sum of money on a referendum campaign, it can begin to dip into violation territory, said Barry Lynn, executive director of Americans United for the Separation of Church and State (AUSCS), a Washington, D.C.-based organization dedicated to preserving the U.S. Constitution’s religious liberty provisions.

“In general the tax laws do allow participation in referendum campaigns,” said Lynn, an ordained minister in the United Church of Christ, who lives in Chevy Chase, Md. “Where a religious organization will run afoul [of the law] is if they use a ‘substantial’ amount of their overall budget.”

The word “substantial” is what the IRS uses in its tax code, a word that Lynn pointed out is not very clear. The way for tax-exempt organizations to avoid potentially violating the law is to set a limit, Lynn said, noting that AUSCS, a tax-exempt organization, only dedicates 20 percent of its budget expenses to lobbying.

Another way churches could potentially violate IRS law, Lynn said, is by selling lists of church members’ contact information to campaign committees or legislators. However, gathering the lists and giving them away is not illegal, he said, though church members might not appreciate it.

IRS spokesman Anthony Burke told TAI the law is clear. During every election cycle, the IRS puts out a press release about political activity tax-exempt organizations, which states:

However, the IRS is not clear on the lobbying rule as it relates to churches.

Even though preaching policy at the pulpit is usually legal, Lynn said he does not agree with the practice.

“I wish churches didn’t spend any money on [political activity],” he told TAI. “There is a fundamental misunderstanding on how laws are made in this country.”

In the case of same-sex marriage, Lynn said the bulk of the arguments against are based on religion, hence much of the support and lobbying comes from religious organizations.

“Historically [the argument against gay marriage] is always rooted in the interpretation of Christian biblical principle.” Lynn said. “But we don’t make laws based on our understanding on biblical principle. Martin Luther King, Jr., never endorsed a candidate from the pulpit.”