More on Americans United for Separation and Bishop Tobin

I would like to thank Prof. Steve Shiffrin for his thoughtful post of June 20 responding to my earlier remarks regarding Bishop Tobin’s Rhode Island Catholic May 31 article entitled My R.S.V.P. to Rudy Giuliani. Steve suggests disagreement with me on some matters. His comments also indicate that I may have been too brief and should have fleshed out more wholly my perspective on the Tobin-Lynn question. Of course, one of the problems that is characteristic of most web log postings is that they are not designed to study in depth any matter or issue. But, Steve does appear to agree with me on one important point. At the end of his post he states that government actions against religious groups (i.e., “the spectre of government bribing leaders of religious organizations to stay out of politics… even when their conscience dictates otherwise”) present problems. To quote a line from the old English cases, I am of the same opinion. As I see the situation, these problems can include using the tax code as a means of pressuring the proper exercise of the Constitutional guarantees pertaining to the free exercise of religion and freedom of expression.

What is presently at issue in the matter on which I previously wrote is the allegation by Barry Lynn and Americans United for Separation of Church and State that Bishop Tobin violated Section 501(c)(3) of Title 26 of the United States Code when he, Tobin, stated in his Rhode Island Catholic article that he would never defend a candidate who supports legalized abortion. Under this provision of the Internal Revenue Code, tax exempt organizations are forbidden from publishing or distributing statements in “any political campaign on behalf of (or in opposition to) any candidate for public office.” The Rev. Lynn and Americans United are renewing the argument that was essentially made by Abortion Rights Mobilization, Inc. (ARM) against the Catholic Church in the 1980s. ARM sued the U.S. Bishops Conference and the U.S. Treasury that the latter should revoke the Church’s tax exempt status because of the Church’s public teaching on abortion and the political position this teaching conveyed. In this lawsuit, the courts did not disturb the IRS’s findings that the Church was in compliance with Section 501(c)(3). I suggest that the current circumstances surrounding the concerns of Americans United for Separation of Church and State are no different.

The IRS has determined that the Church’s teaching on the abortion issue does not violate the tax code. As one leader of the Church, Bishop Tobin has the responsibility in his teaching office to continue this fundamental instruction. Some may argue that while there are Constitutional protections upon which the Church and Bishop Tobin rely in this regard, there are also statutory provisions, such as the Internal Revenue Code, that must be honored as well. But when there is perceived tension between the Constitution, the supreme law of the land, and a particular statute, the primary way of avoiding any conflict between these two legal authorities is to read the statute in a way that is consistent with the applicable Constitutional provisions. In this case, Section 501(c)(3) is to be interpreted in a manner that is consistent with the First Amendment.

But if this is not possible, it may be argued that the statute which remains in conflict with the Constitution is, in fact, unconstitutional. Steve suggests this possibility in his posting.

In the meantime, I think it is helpful to keep in mind that Americans United for Separation of Church and State is another tax exempt organization that relies on the protection of Section 501(c)(3). While Americans United for Separation asserts that “we are careful to make sure we are always in compliance [with the requirements of 501(c)(3)]… [by not] making any statements supporting or opposing any candidate or party…” its actions indicate otherwise. For example, the website of Americans United for Separation has a menu where the reader can click on the voting records of elected officials including state officials and Members of Congress. By selecting the entry on a particular official, the reader can see if that office holder voted “with us” or “against us.” While this information provided by Americans United for Separation is nuanced, it nevertheless indicates that this tax exempt organization is presenting a position on and the suitability of this office holder and future candidate by indicating whether he or she is “with us” or “against us.” Perhaps Americans United for Separation would disagree with my analysis. But since a part of their mission is to educate the public “about religious freedom issues and organize local chapters all over the country,” their actions speak more clearly than their words. The Rev. Barry Lynn and the organization of which he is executive director understandably want to exercise their Constitutional rights. This is essentially the position of the NAACP, another tax exempt organization, took when President Julian Bond delivered a speech in July of 2004 that made implications about candidates in the then upcoming presidential election. Has Bishop Tobin done anything different? No. He has exercised his Constitutional liberties to protect the unborn and to teach about the evils of abortion and to agree with Mr. Giuliani that abortion is “morally wrong.”    RJA sj