Legal Rights of Churches in Initiative Campaigns
By Michael K. Whitehead, Attorney **
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            In just a few weeks, Missouri voters will consider a ballot initiative to amend the state constitution.   The proposed amendment purports to ban human cloning.   In fact, it would create a new constitutional right to clone human embryos, and then kill them after extracting their stem cells for medical research.  
Many leaders in the scientific and religious community agree that this may be the most significant ethical decision of our lifetimes.  It is the proverbial slippery slope which could usher in our Brave New World complete with eugenics and clone armies. " 
Meanwhile, some pastors and church leaders are asking: "What can we say to our people and to the public about this issue? Do we violate the law for tax exempt organizations by speaking prophetically about what the Bible says about political issues? Should the church even be involved in politics?"
Some people seem to think that our US Constitution's First Amendment prohibits pastors and church members from bringing their religious convictions into the public square.   This phobia paralyzes some pastors and prevents them from speaking prophetically to their people.   The fear is misplaced, and is based on bad law and bad theology. The truth is that American pastors and churches are free to express their Bible-based convictions about public policy issues, without endangering their tax exempt status.
Part of the reason for the paranoia is an ambiguous statute.  Section 501(c) (3) of the Internal Revenue Code has two rules, which regulate political activity by churches and exempt organizations. One rule prohibits endorsing candidates.  The other rule permits influencing legislation, such as a Constitutional Amendment by Ballot Initiative.
The Code permits a church to try to "influence[e] legislation," so long as the expenditures for this effort in a given year is "no substantial part of the activities" of the church.  The code does not define "influencing legislation" or "substantial part."     There is not a fixed dollar amount or percentage that is always legal or illegal.   The Treasury Department has suggested a guideline in some prior cases that expenditure of five percent or less of the organization's budget for a year is not substantial and not unlawful.
You and your church have the right to spend church resources to educate and motivate voters about the Human Cloning Amendment.   You probably won't come close to spending 5% of your budget on this issue, but you could.  
Does that mean if you spend more than 5%, you have broken the law, or may lose your church's tax exemption?   Imagine a church deciding that it was led of the Lord to spend all of its budget one year addressing the issue of the sanctity of human life.   Can you imagine government bureaucrat trying to tell the church it was spending too much time and money talking about a passage of Scripture?  "Move on to some Bible verse that is less relevant."   
Most religious liberty lawyers would use a technical legal phrase to reply to this argument:   "Magnus Bolognus"  meaning, that's a lot of baloney.  There is a more fundamental law than the Internal Revenue Code, and that is called the First Amendment to the US Constitution, which recognizes the right of religious free speech and free exercise.  No church has ever lost its tax exemption because it spent too much of its budget talking about a biblical issue that had also become a political issue.   It has never happened and is not likely to happen under current law in America.
It is a different matter if a church uses church resources to endorse a particular political candidate or party.  For example, imagine a pastor saying from the pulpit:   "Our church is pro-life, so we urge you to support Candidate Smith, who is pro-life."    The IRS may assert that this violates the tax code and election law.    The Candidate Endorsement Ban should not, however, deter churches from speaking out on biblical issues at stake in law making, such as a Constitutional Amendment on human cloning. 
            Historic Baptists such as John Leland would be appalled at the modern surrender of religious freedom of speech.  Our founding fathers were willing to be jailed or to be hanged before they were willing to be licensed or muzzled by Caesar, who had no authority over when, where or what they could preach.  In 1920, Baptist statesman George Truett, pastor of First Baptist Dallas, went to the steps of the United States Capitol and demanded that Caesar keep his millstone off the church's neck. "Christ's religion needs no prop of any kind from any worldly source, and to the degree that it is thus supported it is a millstone hanged about its neck."

            For some Christians, tax exemption may have become a modern millstone.   Is it possible Christians have allowed the principle of church-state separation to be so mangled by modern secularists that the distorted doctrine is now used to intimidate the church into silence about biblical positions on public policy issues? Have Baptists surrendered their religious liberty birthright in exchange for a bowl of tax-exemption pottage?   Some ministry leaders have threatened to surrender their tax exempt status rather than be gagged by it.  Fortunately, that radical alternative is not yet necessary for most ministries in Missouri who wish to address the Human Cloning Amendment.
            Practicing "preventive law" may be prudent, but pastors and teachers will seek to balance their duties under an ambiguous law with their religious duty and constitutional right to preach prophetically to culture and government.  Pastors don't have to be tax lawyers to make practical daily judgments about complying with the law while still obeying Christ's command to be "salt" and "light."   Some practical steps they can take:

1. Present sermons / Sunday school lessons / video tape presentations on the sanctity of human life, including human embryos.  All of us, even Jesus, started as an embryo, the one-cell stage of human development.
2. Print non-partisan bulletin inserts in the church bulletin or newsletter. 
3. Write letters to the editor in local papers.
4. Hold an educational forum with speakers from the Missourians Against Human Cloning. (Contact  www.nocloning.com)
5. Obtain help or additional resources from the Missouri Baptist Convention  www.mobaptist.org , and its Christian Life Commission, chair Rodney Albert  <hbc_pastor@yahoo.com>

 
 
Resources: 
Missourians Against Human Cloning. (Contact  www.nocloning.com)
 
Missouri Baptist Convention  www.mobaptist.org
American Center for Law and Justice: http://www.aclj.org/media/pdf/040317_fed_campaign_finance.pdf
 
Center for a Just Society,  Ken Connor, president. www.centerforajustsociety.org
 
IRS: http://www.irs.gov/charities/charitable/article/0,,id=120703,00.html
 
 
** Mike Whitehead has practiced law in Kansas City, MO since 1975 and represents numerous non-profit religious organizations, including the Missouri Baptist Convention.  Mike formerly served as General Counsel for the Ethics and Religious Liberty Commission (formerly Christian Life Commission) in Washington, DC.   He was Business Vice President and interim President for Midwestern Baptist Seminary in <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Kansas City,  and was associate professor for church-state law.   He has served on national boards for Christian Legal Society and Alliance Defense Fund, and has been involved in religious liberty cases before the U.S. Supreme Court.   He is on the board of Missourians Against Human Cloning.
© Copyright, Michael K. Whitehead, 2006.   
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