A recent article in The Federalist titled “Houston Sermons Are, Legally Speaking, Fair Game” has a heartening conclusion, but contains some inaccuracies and misstatements.
In the sixth paragraph, the author states:
But even with this revision, much of the American public is incredulous because they believe that First Amendment protections for freedom of religion and speech mean the City of Houston, or any government authority, has no power over sermons or religious speech. But the public is wrong. The authority is there, it has just rarely been used.
She then quotes a friend, who says:
[T]he mayor or city’s legal representatives might pursue subpoenas against churches/pastors is because most churches are exempt from local, state and federal taxes as US 501c3 organizations. To qualify for tax exemption, organizations must meet the following criteria: ‘To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual. In addition, it may not be an action organization, i.e., it may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activity for or against political candidates.’
This is incorrect. Subpoenas can be issued to an organization whether it is tax-exempt or not—this factor does not affect the legality of the subpoena. Whether an organization is exempt or not, subpoenas can only be issued for requested material which is relevant, not privileged. In addition, the subpoena is unlawful if the person issuing it is doing so simply to harass its recipient. Whether the recipient organization is tax-exempt or not does not matter to these questions.
Thus, the author’s statement in the sixth paragraph is misleading because it leaves the reader with the impression that the “power over sermons or religious speech” is validly contained within a subpoena which can be issued if an organization engages in such speech. But as pointed out above, issuing a subpoena in retaliation for such speech is improper—indeed, it is harassing, and grounds for the subpoena to be quashed. The remedy, if any, is for the Internal Revenue Service (IRS) to proceed with action against the initial organization.
The author later states:
The City of Houston plans to try to invalidate the petitions by showing that the pastors tried to influence city legislation and then, I suspect, will turn the communications obtained in a court proceeding over to the IRS hoping it will revoke participating churches’ tax-exempt status, which would also expose the churches to property taxes in Harris County.
First, whether the city thinks the pastors “attempted to influence legislation” is irrelevant to the legal issue here—whether signatures complied with the city charter requirements. To say it again: the pastors’ instructions or comments regarding anything pertaining to this matter have no bearing on the legal issue in this case—the validity of the signatures as certified by the city secretary—which is determined entirely by city charter requirements.
Second, even if the material was obtained and turned over to the IRS (the city would first have to show it’s relevant—it can’t say “we want this material to turn it over to the IRS”), this would draw a constitutional challenge from the church (which many want to see because the IRS regulations are likely unconstitutional). The author—erroneously, I believe—concludes the IRS would be able to revoke tax-exempt status. But such an attempt would likely be struck down as unconstitutional.
While the author does conclude as much near the end of her article, the article read as a whole is somewhat confusing and leaves the reader with the impression that the government is on much more solid ground than it is. In addition, the article leaves the reader concluding that the mayor’s office has valid IRS regulations to use against churches, when, even what ground the government stands on has nothing to do with IRS regulations, but rather legal rules governing the issuance of subpoenas.