Attorney: Churches don't violate IRS code when supporting marriage amendments

By Michael Foust — BP News



PHOENIX — Churches can support proposed constitutional marriage amendments without any fear of losing their tax-exempt status, an attorney with a religious liberty organization says.

Seven states are scheduled to vote on marriage amendments this year, and conservatives in two others -- Arizona and Colorado -- are gathering signatures with the goal of being added to that list.

Gary McCaleb, senior counsel with the Christian legal group Alliance Defense Fund, said pastors can voice support for the amendments from the pulpit and churches can assist in petition drives without fear of reprisal from the Internal Revenue Service.

"In respect to their Internal Revenue Service tax exemption, they have a lot of liberty and leeway to support a ballot initiative," McCaleb told Baptist Press. "As long as what they do is an insubstantial amount of their total budget, they're pretty much free to do whatever they want in support or opposition to the ballot initiative."

Various courts have ruled that a "substantial amount" ranges anywhere from 5-15 percent of an organization's total resources, McCaleb said. So, if a church's budget is $100,000 and it spends less than $5,000 to support a marriage amendment -- which would amount to less than 5 percent of the budget -- "you're home free and clear as far as the IRS is concerned," McCaleb said.

Nineteen states have adopted marriage amendments, and churches have been critical to their passage in nearly every instance. Facing a deadline in Oregon in 2004, churches in that state helped gather 200,000 signatures in only five weeks in a successful effort to place an amendment on the ballot. It passed easily. Support for the amendments from the pulpit also has helped drive conservative voters to the polls. The 19 amendments have passed with an average of 71 percent support.

But while IRS law is clear in allowing support for marriage amendments, state election laws occasionally are not. In March, a Montana state official ruled that a Southern Baptist church there broke state law in 2004 by gathering signatures for a marriage amendment and voicing support for it from the pulpit. The church, the ruling said, first should have registered with the state as an "incidental political committee." ADF has filed a suit seeking to have the state law struck down, arguing it violates constitutionally protected religious expression and free speech. A federal judge could issue a ruling any day.

Arizona's law is similar to Montana's, McCaleb said, adding that Colorado's law appears to give more leverage to churches. He believes Montana's law and others like it eventually will be struck down as unconstitutional.

"[T]he bottom line is that this is clearly a constitutional right," he said of supporting a marriage amendment. "We would very readily stand in and defend a church that allowed petitions to be circulated on its premises, because we think that the laws that regulate are almost undoubtedly unconstitutional."

Asked what advice he would give to churches, McCaleb said, "Don't take counsel of your fears.

"[Y]ou should have the courage of your convictions," he said.

"Christians look at this as a very principled issue of free exercise of religion," McCaleb said. "The left-wing looks at it as an opportunity to silence the Christians."

It actually helps, McCaleb said, that a handful of liberal churches in Arizona and other states are opposing the amendments. Because of that, liberal groups are less likely to turn in conservative churches.

"The organized opposition would probably be reluctant to file a complaint, because someone would burn them the same way," he said.

But churches in Arizona wanting to gather signatures for a marriage amendment can take practical measures to try and avoid breaking state law — even if they believe the law is unconstitutional. For instance, copies of the petitions could be made on paper and copiers not owned by the church, McCaleb said. Also, volunteers could be allowed to come into the church to gather signatures. It even helps if the volunteers are not given a table but instead walk around and use clipboards, he said.

"If these folks are volunteers doing it of their own volition, the only real question is, 'Does a church official want to call these people trespassers and throw them off, or do you let them on as guests?'" McCaleb asked.

Laws such as those in Montana and Arizona "need to be stricken down, and the only way they can be stricken down is through court action. And that takes a church willing to stand for its rights," he added.

Seven states are scheduled to vote on marriage amendment this year: Alabama, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin. It is possible that by the end of 2006, a majority of states will have adopted them. The amendments are designed to prevent state courts from legalizing "gay marriage." Massachusetts has no such amendment, and in 2003 its highest court issued a ruling legalizing "gay marriage." Currently, eight states are involved in "gay marriage" lawsuits. Only one of the states has a marriage amendment.

The Alliance Defense Fund can be reached at 1-800-TELL-ADF.

Published, May 2006

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