Over the last few weeks, there have been numerous media outlets and news organizations reporting misleading and factually inaccurate information about FFRF’s joint dismissal of the FFRF v. Koskinen lawsuit. FFRF would like to set the record straight.

What was FFRF’s lawsuit about and what happened?

FFRF sued the Internal Revenue Service (IRS) in late 2012 to compel it to enforce its own regulations barring tax-exempt 501(c)(3) nonprofits from engaging in partisan political activity.  FFRF had reason to believe that the IRS was not enforcing these regulations against churches or other religious organizations.In fact, a theocratic legal society, the Alliance Defending Freedom, is the chief sponsor and promulgator of “Pulpit Freedom Sundays,” in which it urges churches to openly flout the law and endorse from the pulpit. Many such churches have directly “turned themselves in” to the IRS to test the law.

In July 2014, FFRF agreed to voluntary dismissal of its case because recent clarifications by the IRS have remedied its concerns. FFRF is satisfied that the IRS does not at this time have a policy specific to churches of non-enforcement of its anti-electioneering provisions.

Doesn’t this mean the IRS is targeting conservative churches?

No.There is no change in federal law or IRS regulations; rather, the tax code is being enforced evenhandedly. There will be no impact or effect on any law-abiding 501(c)(3) groups, including churches. All that the IRS intends to do now is to follow an already existing objective process for enforcing electioneering restrictions in a way that ensures no nefarious targeting of any organization occurs. 

Does this settlement prevent pastors from commenting on social issues, such as same-sex marriages, abortion, contraceptive coverage, etc.?

No. FFRF specifically challenged the IRS’s purported policy of “non-enforcement of the electioneering restrictions” as to churches and religious organizations.  Section 501(c)(3) of the Tax Code prohibits all nonprofits — including churches and other religious organizations, and FFRF — from intervening in political campaigns as a condition of their tax-exempt status. This means these organizations are strictly prohibited from participating or intervening, directly or indirectly, in political campaigns on behalf of or in opposition to any candidate for elected public office.

Is FFRF targeting conservative churches because it disagrees with their political views on social issues?

No. Some news organizations and commentators have stated that FFRF is “targeting” conservative churches. This is simply untrue. Since 2006, FFRF has sent more than 50 letters to the IRS. asking for investigations into situations in which FFRF believes the tax code was violated. FFRF has acted on complaints from the public, who believe the law is being violated. FFRF letters to the IRS. about possible violations are made without regard to political affiliation or allegiance. For instance, in the 2012 election, FFRF sent a letter to the IRS regarding a pastor at a church in North Carolina who urged his congregation during worship services to vote for President Obama.

Furthermore, as a 501(c)(3) nonprofit organization, FFRF cannot take any partisan action. FFRF aligns itself with no political party.

Did FFRF withdraw the case because the IRS. agreed to “monitor” specific churches?

FFRF did not withdraw its suit pursuant to any agreement to “monitor” sermons and homilies for proscribed speech with which FFRF disagrees. As the court documents state, FFRF withdrew the case because it “is satisfied that the IRS does not have a policy at this time of non-enforcement specific to churches and religious institutions.” 

Is FFRF “out to suppress free speech rights”?

No. As a defender of the First Amendment, FFRF respects the free speech rights of any individual or organization. Tax-exempt 501(c)(3) nonprofit organizations are afforded a special privilege in our country. If an organization chooses to be tax-exempt under 501(c)(3), it forfeits the right to engage in political campaign intervention. Churches and other religious organizations are free to engage in electioneering if they so choose, but they cannot abuse their tax-exempt privilege and remain tax-exempt.

Doesn’t a dismissal mean losing a case?

No. When parties settle a case, the case must be removed from the court’s docket. The dismissal is a procedure for doing so. FFRF’s case was dismissed “without prejudice” meaning FFRF can refile if the IRS fails to enforce the law. 

— Written by FFRF Senior Staff Attorney Rebecca Markert

FFRF, IRS poised to settle church politicking suit

The Freedom From Religion Foundation and the Internal Revenue Service are poised to resolve FFRF’s closely-watched federal lawsuit challenging the IRS’s non-enforcement of anti-electioneering restrictions by tax-exempt churches. The expected settlement would be a major coup for FFRF, a state/church watchdog and the nation’s largest freethought association, now topping 21,000 members. 

FFRF and the IRS filed an agreement on July 17 to dismiss the lawsuit voluntarily, following communications from the IRS that it no longer has a policy of non-enforcement against churches. The settlement would allow FFRF to voluntarily dismiss its lawsuit “without prejudice,” meaning FFRF can renew the lawsuit if the IRS reverts to its previous inaction. As of press time, District Judge Lynn S. Adelman, of Milwaukee, had not yet ruled on the agreement. 

However, the agreement is being disputed by an obscure Milwaukee-area church, Holy Cross Anglican Church, which is intervening in the case and is represented by the Becket Fund for Religious Liberty. 

“We’re proud that FFRF’s litigation should ensure that the IRS will now resume enforcing the law, and go after churches which abuse their tax-exempt privilege by attempting to illegally influence the outcome of elections. Otherwise, churches will become unaccountable PACs, congregations could turn into political wards, and donations to the collection box could be used for political purposes. FFRF’s litigation will help safeguard our democratic election process,” said FFRF Co-President Dan Barker. 
FFRF filed suit against the IRS shortly after the presidential election in 2012, based on the agency’s reported moratorium on enforcing the electioneering restrictions against churches and religious organizations. No 501(c)(3) entity, including churches, may retain tax-exemption if it endorses political candidates. 

Yet the IRS had no procedure in place to initiate churches examinations, after a Minnesota district court invalidated the IRS’ prior procedure in 2009. Church groups began to notoriously and openly engage in politicking from the pulpit, including at annual organized events to flout the law known as “Pulpit Freedom Sunday.” An IRS official publicly reported in 2012 that the IRS had an on-going moratorium on making church tax examinations, in spite of flagrant and public electioneering by churches and religious organizations. 

On June 16, a year and a half after first filing suit, FFRF received its first information from the IRS indicating it no longer has a policy of non-enforcement against churches. FFRF’s counsel, Richard L. Bolton, also discussed the policy with the Department of Justice, and on June 27, FFRF was apprised that the IRS has a procedure in place for “signature authority” to initiate church tax investigations or examinations. 

Complicating the practical effect for now of the settlement is the global moratorium currently in place on IRS investigations of any tax-exempt entities, church or otherwise, while Congress conducts its probe on IRS tea party policies. 

The intervening church filed a motion insisting: “FFRF should not be in a position to drop this lawsuit and file an identical lawsuit (and again put the Church’s interests in jeopardy) a week, a month, or a year in the future.” The Becket Fund has asked the federal court to dismiss the suit “with prejudice,” so that FFRF could not renew its challenge if the IRS reverts to taking no action on violative churches. 

On July 29, FFRF filed a response making it clear FFRF will only dismiss voluntarily if “our agreement has teeth,” said FFRF Co-President Annie Laurie Gaylor, “to ensure that we can resume the suit if anti-electioneering provisions are not enforced in the future against rogue political churches.” 

Alliance Defending Freedom, which is the force behind Pulpit Freedom Sunday, and which has proclaimed Oct. 5 Pulpit Freedom Sunday this year, also got into the act, filing a Freedom of Information Act request after learning of the July 17 agreement, insinuating that the IRS was withholding information. 

Contrary to the intervenor’s contention, “there is nothing strange, collusive, or concealed here,” noted the IRS in a July 22 motion filed with the court.