"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, and to petition the Government for a redress of grievances."
Above is the entire First Amendment. The underlined portion contains the two religion clauses: the Establishment Clause and the Free Exercise Clause. Notice the first and fifth words: "Congress" and "law." Congress makes a lot of laws. That's their job. But the First Amendment spells out a couple areas where Congress may not make laws. Given that, how do we explain the 1954 law wherein the IRS prohibits churches from speaking out about politics? If that's not covered by the Establishment or Free Exercise prohibitions, wouldn't it be covered later by the "freedom of speech" clause?
But again we have a stories in the news about pastors who express opinions about candidates:
Dailyrecord.com
The article discusses opinions on both sides, where some religious leaders think that political opinions should not come from the pulpit. I happen to agree with the opinion, but not because it is in any way unconstitutional to speak about politics from the pulpit.
One huge problem with a law such as Congress passed for the IRS is that someone then has to judge what is political speech. Suppose a priest simply says abortion is wrong? Is that endorsing a candidate? Or because freedom of abortion is usually associated with Democrats, does that automatically make it an endorsement?
Or what if your minister speaks about the importance of being faithful to your spouse? If a candidate in the news has had an extra-marital affair, would that fact make the speech political? If no election were coming up soon, would the opinion then not be political just for that reason? One could argue on either side, I suppose, but do we really want the Federal Government deciding this?
Let's carry it one step further. Suppose the upcoming Congress re-enacts the Fairness Doctrine or something similar? Some might hope that the doctrine would help drive some talk show hosts like Rush Limbaugh off the air. Limbaugh certainly makes no excuses for being a conservative. But facing the Fairness Doctrine, what if he ajusted his talk? Could it go something like this?
"I support the Democrats in this new bill they are proposing. After all, the Constitution was written a long time ago, and no one really takes the __ Amendment seriously in today's society anyway. Support your Democrat representative. Tell him or her to ignore complaints about the record amounts of lobbying money they have accepted from groups that would benefit from this bill. Tell them that you trust them to manage your rights. And encourage to get away from the old-fashioned and biased statement that our rights come from our creator; we all know that it is the government that gives us our rights."
I assume my sarcasm was clear enough. But would the IRS then have to rule on intent rather than literal words? Could they be trusted to determine more subtle slams from a more clever talk show host? That's only one of the reasons the First Amendment exists, but it is an important one, nevertheless. My fundamental problem with such a law is that it would seem to violate the religion clauses AND the free speech clause simultaneously.
Our Founders wanted to keep the government from controlling too much of our lives. I think this 1954 law would have given them pause.
