What would you think if the federal government announced that it would send in federal officials to monitor what Muslim mullahs preach during religious services to determine whether the sermons opposed federal policy or had other political ramifications? In 2008 we learned that one individual “posed as a Muslim convert at the request of the FBI” to gather information that might aid investigators. When this information came to light, the government refused to stop this monitoring, even though the vast majority of Muslims want nothing to do with terrorism.
The Council on American-Islamic Relations (CAIR) joined with the ACLU and sued, claiming that this government monitoring violated the First Amendment rights of worshipers who attended several California mosques. Similarly, the ACLU, CAIR, and other human rights groups have challenged the New York Police Department’s blanket surveillance of New York mosques. Should government agents monitor to see whether any preachers instructed their congregations to tell the government that they object to U.S. troops in Muslim lands?
Such religious profiling is troubling, and in response to these lawsuits, the NYPD agreed to stop its monitoring of mosques. In the case of federal monitoring, Freedom of Information Act (FOIA) requests produced documents showing that the FBI monitored mosque sermons at least from 2004 to 2008. In 2011, Attorney General Eric Holder and the Department of Justice urged the court to dismiss a lawsuit objecting to the FBI’s use of a paid informant to monitor mosques in 2006. News reports later told us that since 2011, perhaps in response to these disclosures, the federal government sharply limited its monitoring of mosques and the mullahs’ sermons.
However when the government closes one door, it opens another. In this case, it is increasing its monitoring of Christian churches. In particular, it is focusing on 99 churches that it labels “high priority examination.” The particular IRS office monitoring churches is the Exempt Organizations section of the IRS. You have heard of that office before; it is the office that the Treasury Inspector General for Tax Administration found was inappropriately targeting “tea party” and similar organizations based on their policy positions or names.
The Freedom from Religion Foundation, Inc. (FFRF) sued the IRS Commissioner, objecting that the IRS was not monitoring the content of sermons. The IRS settled the suit in July 2014, and agreed that it would monitor the content of sermons to make sure that churches are not engaging in “political activity,” which could cause them to lose their tax status. “This is a victory,” said FFRF Co-President Annie Laurie Gaylor. The IRS agreed to monitor churches to make sure that they do not engage in “electioneering.” For example, the FFRF objected to the IRS that a Wisconsin Catholic Bishop wrote, “No Catholic may, in good conscience, vote for laws or candidates who would promote laws that would infringe upon our liberties and freedom of conscience.” That apparently is unlawful electioneering.
The IRS, by settling this lawsuit, appears to agree to do that which the First Amendment forbids. Many churches have religious views about political issues because politicians have made the law govern churches. For example, the Equal Employment Opportunity Commission sued the Hosanna–Tabor Evangelical Lutheran Church and School because it fired a minister. The Supreme Court, with no dissents, held that the “ministerial” exemption, “grounded in Religion Clauses of the First Amendment” bars an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. More recently, the Supreme Court held that regulations promulgated pursuant to the Affordable Care Act that required for-profit closely held corporations to provide insurance coverage for contraceptives violated the Religious Freedom Restoration Act of 1993.
In Harris v. McRae (1980), plaintiffs argued that the Hyde Amendment, which severely restricted the use of federal funds to pay for abortions, is unconstitutional because opposition to abortion was based on religious views. Hence, they argued, the abortion restrictions violated the Establishment Clause. Granted, many people base their opposition to abortion on their religious views. However, the Court rejected that argument. Laws do not become unconstitutional because they happen “to coincide or harmonize with the tenets of some or all religions.” Some religions object to usury, but the state may still enact (or refuse to enact) laws that prohibit usury. And churches can say that usury is (or is not) moral. Since the United States began, churches have preached openly about moral issues that public policy affect, such as slavery, racial discrimination, child labor, and prison reform.
The usual rule is that government may not forbid or punish speech based on its content. The IRS could not take away the tax-free status of United Way simply because it preaches that people should voluntarily give to the less fortunate and not just rely on government to help the poor. Similarly, the IRS should not have the power to take away the tax-free status of a church because it preaches a comparable gospel—particularly because the First Amendment guarantees a right of free exercise of religion, in addition to the right of free speech, which it grants to all of us.
Of course, many people may object to these religious beliefs and those who preach them. They have the right to do so. However, that is quite different from the IRS taking away the tax-exempt status of a church because it proselytizes religious beliefs that are not in accord with government policy. The IRS may not engage in viewpoint discrimination. That was the conclusion of the Treasury Inspector General for Tax Administration.
The IRS appeared to understand the free speech and free exercise problems, because, for over a half-century, it did not monitor the content of church sermons in order to evaluate churches’ tax-exempt status; then, came the passage of the 1954 federal Johnson Amendment, which one could read to authorize the IRS to do so. Now, such monitoring has a new lease on life because the IRS can say that it settled the lawsuit and that settlement requires them to monitor sermons.
The IRS has not learned much from the Inspector General report. In addition to targeting the Tea Party, we know now that that the IRS also appeared to monitor political groups that do not support the president’s policies on Israel. In 2009, the “Z Street” group applied for §504(c)(4) tax-exempt status. The IRS tax-exempt office, we later learned, had a “Be On the Lookout” list that included red flags for groups referencing “disputed territories.” We know that the IRS asked such questions as, “Does your organization support the existence of the land of Israel?” and “Describe your organization’s religious belief system toward the land of Israel.” Z Street is now suing the IRS for viewpoint discrimination. The Department of Justice (which is supposedly investigating the IRS’s targeting of conservative groups) is also defending the IRS in this case. We know that the IRS created a special category for reviewing organizations engaged in “disputed territory advocacy.”
We also know that the IRS may be getting very tired of the Inspector General’s investigation of it. The Tax Inspector General has joined with 46 other Inspectors General—a majority of the 73 Inspectors General—in signing an unprecedented letter complaining that the Obama administration is obstructing their investigations into government corruption. The Inspectors General are nonpartisan; indeed, President Obama appointed many of them. They are the watchdogs, and their complaint is that government agencies refuse to give them access to the documents to which they are entitled under the law. This obstruction extends beyond the IRS. For example, the Peace Corp refuses to provide the Peace Corps Office of Inspector General with full access to sexual assault records, thus obstructing the IG investigation. The Justice Department has refused to turn records over to its IG even though “such records had been produced to the DOJ OIG by the agency in many prior reviews without objection.”
Do these agencies have something to hide? We do not know if we cannot see the records, but we do know this: if you had something to hide, this is exactly the way you would act. If you have nothing to hide, then why hide?