Free speech based on location?

genemichaelhoughtonnytHere at GetReligion, we try to jump on major religion-beat stories pretty quick.

Thus, I want to apologize for missing an important development in the controversial “Pulpit Initiative” movement that is sure to draw waves of coverage in the next three or four days.

What did I miss? I missed this headline in a few mainstream newspapers, in this case the Chicago Sun-Times: “Openly gay bishop endorses Obama.”

Here’s the top of the report:

CONCORD, N.H. – The Episcopal Church’s first openly gay bishop endorsed Sen. Barack Obama for president on Thursday, even though they don’t share the same views on issues critical to gays and lesbians.

”Frankly, I don’t think there’s any major candidate that is where we in the gay community would hope they would be on our issues,” V. Gene Robinson said in a conference call with reporters. ”That being said, I would say the senator has been enormously supportive of our issues. We appreciate his support for civil unions.”

The twist, of course, is that this story ran in August 2, 2007.

It also must be stressed that the report notes that “his endorsement was as an individual, not as bishop.” This endorsement was not delivered from a pulpit. Thus, this was not big news.

There’s the rub. The conservative pastors who are poised to challenge the I.R.S. plan — apparently — to deliver their endorsements from their pulpits. But note that we do not know, yet, whether they plan to speak for themselves when they do whatever they plan to do or in the name of their congregations. If you click here, you can see my take on some of the other legal wrinkles that could unfold this coming Sunday.

Please note the question raised by Robinson’s action long ago: It is legal to endorse a candidate outside the sanctuary, but not in it. Free speech rights depend on where you are standing and the time you speak the words. Yes, I also know that it is crucial whether a cleric speaks for himself or in the name of the church. That’s part of what may or may not be tested by the “Pulpit Initiative” crowd.

Meanwhile, the New York Times published a story that was much more definitive about the strategery that will be used this Sunday, as opposed to that Los Angeles Times report that I discussed in my first post on this topic. Here’s the top of Laurie Goodstein’s report:

Defying a federal tax law they consider unjust, 33 ministers across the country will take to their pulpits this Sunday and publicly endorse a candidate for president.

They plan to then send copies of their sermons to the Internal Revenue Service, hoping to provoke a challenge to a law that bars religious organizations and other nonprofits that accept tax-deductible contributions from involvement in partisan political campaigns.

The protest, called Pulpit Freedom Sunday, was organized by the Alliance Defense Fund, a consortium of Christian lawyers that fights for conservative religious and social causes. When the fund first announced the protest this year, it said it planned to have 50 ministers taking part. As of Thursday it said it had hundreds of volunteers, but had selected only 33 who were fully aware of the risks and benefits.

As you would expect, the Alliance Defense Fund team is not anxious to publish its list of potential lawbreakers. Then again, Goodstein quotes one participant as saying that he planned to “make a recommendation” about the merits of the candidates. “Endorsement” is a very strong word, you see. Too strong.

Drat it. I didn’t think of that legal option. I’ll have to add it to my list.

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About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • Martha

    This sounds like a ticklish question, certainly. We’ve all seen the candidates in every election making the rounds of local churches to canvass support – does that break the church/state barrier?

    What is the difference between Pastor Joe of the Tenth Baptist Fire of the Spirit Revived Charismatic Gospel Church of the Father standing up in the pulpit saying “Vote for Candidate Bob!” and Pastor Joe standing up in the pulpit, saying “Today we are honoured to have amongst us someone you all know, Candidate Bob” and then there’s the usual photo-op etc. etc.?

  • Robert Rowley, Tucson, Arizona

    The complete fact of the matter is this. A 501 c3 religious tax exemption is not a right. It is something applied for and possibly granted. When a church applies for a 501 c3 status they go into it knowing what the rules are. Therefore, either accept the rules of that for which you are applying or do not have it. If you cannot agree to the rules of a 501c3 then you shall not have the exemption.

    IRS, please do your duty, uphold the law, and if these churches preach politics from the pulpit, PLEASE revoke their tax exempt status immediately!

  • Will Harrington

    While the endorsment of politicians from the pulpit is an open moral question, what gives the authority for this law to exist? It definitely interferes with the free practice of religion, and since its a federal law the source for this law has to be Congress. Lets hope there is a legal challenge and that the Supreme Court manages to understand the plain language of the constitution. The constitution is set up to protect churches from federal interference such as this. Basically, it looks lie congress, or the IRS has found a way to around the law of the land. Heres a question I don’t know the answer too, but that I think would be critical to the case, does tax exempt status for churches pre-exist the 501c3 laws? If it does, then it would appear that congress passed laws specifically to get around the constitutional ban on interfering with churches, which, by the way, does not prevent churches from interfering with politics.

  • tmatt


    Preaching politics is legal, if you are discussing the political implications of moral doctrine and church teachings. See the Catholic Respect Life materials.

    What is happening here is a protest on the ability to ENDORSE partisan candidates or condemn others.

    As I have shown, this seems to depend on where one is standing. In the pulpit, no. Outside the door? That’s OK.

    That’s an interesting line to draw in free-speech law.

  • FW Ken

    This is not just a problem for political conservatives. All Saints Episcopal, Pasadena got into the same problem. And, as noted, black politicians in black Sunday morning political rallies worship services are a staple here in the south, most of those politicians being Democrats.

    This protest should be a bi-partisan, full spectrum event.

  • Dave

    This is not a free speech issue, in that no one is going to go to jail for endorsing a candidate from the pulpit. They may lose their 501(c)(3) tax exempt status, meaning contributions to that church would no longer be deductible on income tax returns.

    It’s the institution that may not involve itself in candidate politics. The line between the pulpit and the outer door of the church is the line between institution and individual endorsement; it is not a free-speech line at all.

    If this plan goes forward and gets the consequences the law would indicate, the ADF will have the interesting task of arguing that, on First Amendment grounds, churches should be exempt from rules that apply to other non-profit institutions.

  • tmatt

    So, Dave, a bishop that says “I endorse this candidate” outside the door is OK, but one who says it in the pulpit has committed an illegal act? The location determines the law, not the content of the speech?

  • Dave

    Whether the bishop is speaking as an individual or as an officer of the church determines the law. Presence in the pulpit or outside the church is a good clue. In the case of a bishop he’d better be well outside the church and make very clear he is speaking as individual; his profession ties him to the church more than a simple pastor.

    BTW I am not a lawyer. But this issue has come up on UU lists often enough that I’ve learned far more than I ever wanted to know about it.