ACLU Letter to the House Ways and Means Committee Urging Members to Support the Lewis Amendment to Strike Certain Provisions from H.R. 4520, the "American Jobs Creation Act of 2004"

Committee on Ways and Means
Washington, DC 20515

RE:  Support the Lewis Amendment to strike Sec. 692 (""Safe Harbor For Churches"") and Sec. 4956 (""Tax on Impermissible Activities By Churches"") from H.R. 4520 the ""American Jobs Creation Act of 2004""

Dear Representative:

The American Civil Liberties Union strongly urges you to support the Lewis Amendment to strike Sec. 692 (""Safe Harbor For Churches"") and Sec. 4956 (""Tax on Impermissible Activities By Churches"") from H.R. 4520 the ""American Jobs Creation Act of 2004""[and to oppose the bill if these two sections are not deleted.  These sections, as currently drafted, clearly provide a preference and benefit to religious non-profit 501(c)(3) organizations that would be denied to all other non-profit 501(c)(3) organizations.  This is blatant discrimination against non-religious 501(c)(3) organizations, and violates the Establishment Clause of the First Amendment.  The ACLU opposes any proposal that would allow only religious tax-exempt organizations to engage in political activities prohibited under current law.  And the ACLU urges you to support the Lewis Amendment to delete these unconstitutional provisions.

The ""safe harbor"" provision in H.R. 4520 would grant special privileges to religious groups not given to similarly situated non-religious groups by allowing religious non-profits to ""unintentionally"" violate the law three times each year without risking their tax-exempt status.  

Current tax law exempts certain organizations from taxation, including those organized and operated for religious purposes, provided they do not "participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office."  26 U.S.C. § 501 (a), (c)(3) (1994).  Under current law, the restrictions on the political campaign activities of non-profits are applied equally to all 501(c)(3) organizations.  A single violation of these restrictions may result in the revocation of an organization's tax-exempt status.  The proposed Section 692(q)(2) of the ""safe harbor"" provision would create a much more lenient rule by allowing religious 501(c)(3) organizations to engage in a three ""unintentional"" violations of the law per calendar year without risking their tax exempt status.  

By affording special protection to the tax-exempt status of religious non-profit organizations only, these proposed ""safe harbor"" provisions for churches discriminate against secular non-profit organizations.  The United States Supreme Court has ruled unconstitutional laws that create different levels of protection based solely upon whether or not a group is religious.  In Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (l989), the state of Texas created an exemption for sales tax on religious publications, including periodicals and books containing sacred texts.  The publishers of Texas Monthly, a secular magazine, challenged this disparate treatment favoring religion and prevailed.  The Court noted: "It is difficult to view Texas' narrow exception as anything but state sponsorship of religious belief?" Id. at 15.  If the ""safe harbor"" provisions are adopted, non-religious 501(c)(3) organizations would be forced to operate under a ""one strike and you're out"" rule, while religious organizations would have 3 strikes per calendar year.  Under the Supreme Court's decision in Bullock, this is clearly unconstitutional.  

Under the Establishment Clause, government cannot favor religious groups over non-religious groups.  The current restrictions on campaign activity apply equally to both churches and other secular charities that claim tax-exempt status.  Regardless of one's opinion about the appropriate amount of permissible political activity of tax-exempt organizations generally, it is clear that the form of preferential treatment provided by this ""safe harbor"" violates the Constitution and should not be endorsed by Congress.  If the free speech rights of 501(c)(3) organizations are going to be reconsidered by Congress, these rights need to be reconsidered broadly as they relate to all non-profit organizations, rather than attempting to grant new privileges to religious groups while retaining the restrictions for non-religious groups.

Again, we urge you to support the Lewis Amendment to strike Sec. 692 and Sec. 4956 of H.R. 4520 and to oppose the bill if these provisions are not deleted.

Sincerely,

Laura W. Murphy 
Director

Terri A. Schroeder
Legislative Analyst