Letter to the House Urging Opposition to H.R. 235, the Houses of Worship Free Speech Restoration Act

May 25, 2003

Re:       Oppose H.R. 235, the Houses of Worship Free Speech Restoration Act

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Dear Representative:

The American Civil Liberties Union strongly urges you to vote NO on H.R. 235, the Houses of Worship Free Speech Restoration Act.  The ACLU opposes any proposal, including H.R. 235, which would allow only religious tax-exempt organizations to engage in political activities prohibited under current tax law.  H.R. 235 clearly provides a preference and benefit to religious non-profit 501(c)(3)s that it denies to all other non-profit 501(c)(3)s.  This is blatant discrimination against non-religious 501(c)(3)s, and violates both the Establishment Clause of the First Amendment and constitutional guarantees of equal protection under law.  In contradiction to what the bill's supporters have argued, this bill does nothing to clarify the rights of religious institutions.  Instead, this bill would grant special privileges to religious groups not given to similarly situated secular groups.  For these reasons, we urge you to oppose this bill.

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).  H.R. 235 would change the law to state that houses of worship would not be considered to have engaged in political campaign activity-thereby jeopardizing their tax-exempt status-""because of the content, preparation, or presentation of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings.""  

By affording special protection to the tax-exempt status of religious non-profit organizations only, the Houses of Worship Free Speech Restoration Act unconstitutionally discriminates against secular non-profit organizations.  The United States Supreme Court has ruled unconstitutional provisions like H.R. 235 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 H.R. 235 were enacted, non-religious 501(c)(3)s would still be prohibited from endorsing political candidates, while religious organizations would be exempt from this general prohibition.  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 restriction on campaign activity applies equally to both churches and other secular charities that claim tax-exempt status.  Whatever one's opinion on the underlying issues regarding the appropriate amount of permissible political activity of tax-exempt organizations generally, we should all embrace the constitutional principle that the form of preferential treatment provided in H.R. 235 should never be endorsed by Congress.  If the free speech rights of 501(c)(3)s are going to be discussed, these rights need to be discussed 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 vote NO on H.R. 235.

Sincerely,

Laura W. Murphy
Director                                         

Terri A. Schroeder
Legislative Analyst

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