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I have been on a whirlwind adventure the past few weeks, hopping around the country from one event to another.  It all started in Orlando, when I was honored to present a workshop for folks attending the CareNet annual conference.  My topic was timely in this coming election year – how can nonprofit charities exercise their First Amendment rights in light of the tax code and IRS regulations that restrict their ability to speak in the political sphere?  CareNet people are passionately pro-life and would love to see pro-life candidates elected.

Charities can participate in lobbying to a limited extent but are absolutely prohibited from supporting or opposing a particular political candidate.
Charities can engage in “issue advocacy,” but need to be wary of traps—candidates talk about issues and plan their campaigns around issues.  Frankly, I believe the restrictions are unconstitutional, but people need to be informed and either follow them or be prepared to litigate a test case.

I decided to make it fun – and easy (or at least easier) – to navigate the rules.  We all wear different “hats” as we move into different roles in our personal and professional lives.  I bought some party hats and gave them names:  “Freddie Free Speech” (individual citizen), “Charlie, President of Choo Choo Charities” (official representative of charity), and “Cathy Candidate” (candidate for political office).  Once you identify your “hat” and know WHO you are when you speak, you can jump into a series of familiar questions:  WHO, WHAT, WHY, WHEN, WHERE, and HOW.

WHO:  Are you speaking as an individual citizen (“Freddie”) with First Amendment rights, or as the representative of a charitable nonprofit (“Charlie”)?  Do you want to invite a candidate (“Cathy”) to speak at your charity’s event, or simply introduce a candidate who happens to attend?

WHAT:  Are you talking about a particular candidate, proposed or pending legislation, or giving a moral exhortation?  Many issues overlap the religious/moral and political spheres in today’s world.

WHY:  Are you trying to support or oppose a candidate – or legislation you want to see passed (or not)?  Are you teaching a Bible study or giving a moral exhortation about an issue like abortion that is also a controversial political issue?

WHEN:  Is it close to the time for an election, or a legislative vote?

WHERE:  Are you at an official function for a charity you represent, or writing in an official publication for the charity?  If so, you can’t remove your “hat.”  Are you away from your charity, speaking solely as an individual and not on behalf of the charity?  If so, you can put on your “free speech” hat.

HOW:  How is the communication financed?  How is it presented—does it appear that the charity is biased in favor or against a particular candidate?  Has the charity provided an unbiased public forum for candidates—or perhaps given a candidate some advantage it doesn’t offer to others?

This is “food for thought,” as the IRS restrictions require some time to digest.  I hope to write a short guide that is reasonably easy to navigate—with a touch of fun.



The Fourth Circuit has recently released an opinion affirming the right of churches (and other religious organizations) to abide by their religious convictions in making decisions about employees.  Federal law prohibits religious discrimination—a good thing when secular employers discriminate against people of faith—but churches could not achieve their spiritual mission if they could not “discriminate” by selecting employees who fully support that mission.

The case is Kennedy v. St. Joseph’s Ministries, Inc.  Lori Kennedy was employed as a geriatric nursing assistant at the Catholic nursing care facility operated by a religious order.  Residents and their families complained about Kennedy’s long skirts and head coverings—clothing she wore as a matter of religious principle.  Kennedy was told that her clothing was “inappropriate for a Catholic facility,” and she was discharged when she refused to change it.  In ruling for the church employer, the Fourth Circuit followed U.S. Supreme Court precedent affirming the right of a religious organization to “discriminate” on the basis of religion in its hiring decisions.

A case with similar issues will be heard in the U.S. Supreme Court on October 5, 2011.  Hosanna Tabor-Lutheran v. Perich.  (I wrote a brief for that case on behalf of Justice and Freedom Fund.)  Perich, a commissioned minister according to Lutheran tradition, taught at a church-owned school.  She sued after the church refused to immediately reinstate her during a time she was on disability leave.

Hosanna concerns the court-created “ministerial exception” that respects the right of a religious organization to select the persons who will carry out its religious mission.  The principle is particularly applicable to pastors, but it extends much further and is based on the First Amendment Free Exercise Clause.  Kennedy is about an exemption created by federal statute, and it covers all employees—not just “ministerial” employees.  Both cases are about protecting the right and ability of religious organizations to handle their internal business free of state interference.  The Religion Clauses of the First Amendment were designed to guard that right.

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Activists continue to use the worn-out phrase “separation of church and state” to eject religious expression from the public square.  But the Establishment Clause cuts both ways, prohibiting government hostility toward religion as well as the open endorsement that ruffles unbelieving feathers.

Advocates for Faith and Freedom is a fine Christian organization in Southern California that has been litigating Farnan v. Capistrano Unified School District.  (See  The plaintiff is Chad Farnan, a courageous Christian high school student who brought a case against his Advanced Placement European History teacher.  The teacher repeatedly ridiculed Chad’s faith: “When you put on your Jesus glasses, you can’t see the truth.”  A federal district judge issued a favorable ruling, finding an Establishment Clause violation when the teacher expressed “an unequivocal belief that creationism is ‘superstitious nonsense.'”  Unfortunately, the Ninth Circuit decided to skirt the constitutional issue.  The Court admitted that a teacher’s hostile comments about religion might cross the line, but granted immunity to the teacher because they could “not conclude that a reasonable teacher standing in [the teacher’s] shoes would have been on notice that his actions might be unconstitutional.”

Advocates for Faith and Freedom summed it up well:  “Just as public school teachers are not allowed to promote one religion in the classroom, they should not be able to use their classrooms as a platform to attack religion because the pendulum swings both ways.”  A.F.F. will seek further review in the Ninth Circuit, then petition the U.S. Supreme Court if that is unsuccessful.  Let’s pray that one of these courts gets it right.  The pendulum swings both ways—no endorsement, no hostility.

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Recently the U.S. Supreme Court ruled that violent video games enjoy First Amendment protection—even when sold to our youth.  Brown v. Entertainment Merchants Association, 113 S.Ct. 2729 (2011).  The Court struck down a California law that prohibited the sale or rental of these games to children under 18.  At first glance this might sound like a victory for those who want to poison our young people.

Not so fast!  Decisions like this cut both ways.  The First Amendment protects a lot of speech that we as Christians find highly offensive.  But it also protects our right to
preach the gospel—to people of all ages
.  I used to live in California, where I participated in volunteer ministry to children.  I volunteered for Child Evangelism Fellowship, an organization that directs its efforts to children at state fairs and other public places.  On Sunday mornings, I accompanied other volunteers from Pacific Youth Correctional Ministries to a county facility for children removed from their homes for neglect and abuse.  We held chapel and Sunday School for those children.  I was also part of a large chaplaincy program at Olive Crest, a private nonprofit that operates group homes for abused children.  If atheists in America had their way, there would be laws prohibiting this type of religious evangelism to minors.  Look at what the Supreme Court just said in the Brown decision:

And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent.

Modern atheism has taken on an “evangelistic” fervor.  Atheists do not merely reject religion for themselves—they insist that religion is dangerous.  Authors like
Christopher Hitchins, Richard Dawkins, and Samuel Harris are on a rampage to stamp out religion.  In the legal arena, atheists have removed prayer and Bible reading from our public schools and filed a multitude of lawsuits to eject religious expression from the public square.  Meanwhile, anti-Christian materials corrupt school curriculum—evolution, sex education, homosexuality.  Parental complaints fall on deaf ears in the courts of “Christian America.”

Parents have the constitutional right to direct the upbringing of their children in their homes and schools.  They should be able to opt out of objectionable programs and actively participate in decisions about what the schools are teaching their children.  Government ought to support them—not cram corrupted teachings down the throats of our families.   The recent Brown decision affirms this, observing that

…the state has the power to enforce parental prohibitions — to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent.

If the government starts making it illegal to present certain material to minors on the basis of content or viewpoint – the results won’t necessarily be what Christians would want, especially in today’s secular climate.  Christian parents must be vigilant.  If they don’t want their children playing violent video games, they need to supervise them—bringing them up in the nurture and admonition of the Lord.  It isn’t the government’s job to do that for them.

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This past April, the U.S. Supreme Court announced a landmark decision upholding Arizona’s tuition tax credit program.  Opponents claimed it violated the “separation of church and state” because of the benefits that flow to religious schools—through several layers of  PRIVATE choice that allow more families to place their children in private schools.  Here’s how it works:

  • Private individuals organize “School Tuition Organizations” to manage and
    distribute scholarship funds to families who want to place their children in
    private schools.  There’s a wide variety—some of these limit scholarships to particular religious schools (Catholic, Jewish, evangelical) while others do not.
  • Taxpayers voluntarily donate to School Tuition Organizations of their choice and receive a state tax credit (up to $500)—thus directing a few of their own “tax
    dollars” according to private choice.
  • Families apply to an STO of their choice for funds, and choose from among the schools that STO has chosen to support.

The opponents – who sued to have the law declared unconstitutional – lacked legal “standing.”  NONE of their tax dollars went to any of the STOs or any of the private schools, religious or otherwise.  Thus they suffered no legal “injury.”

Like so many recent Supreme Court decisions, this one was close – 5 to 4.  Justice Kennedy is the “swing vote” who made the difference.

Congratulations, Arizona families!  You have choices about where to educate your children, without having to pay twice—first through your tax dollars that support public education, and again through tuition for your choice of private schools.

And besides the benefits to families, this important decision may help to ward off other ominous litigation—for example, challenges by non-believers to the minister’s parsonage allowance, a critical tax benefit for churches and pastors.

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“Separation of church and state” is a tiresome phrase that activists have twisted to eject religious expression from the public square—restricting religious liberty.  But sometimes church and state do need separation: When churches select the persons who will carry out its spiritual mission, the state has no business breaking and entering the sanctuary under the guise of “discrimination” or similar employment laws.  In that context, “separation” protects religious liberty.

The U.S. Supreme Court has taken a case with critical implications for churches and other religious organizations (Hosanna Tabor-Lutheran Church and School v. Perich).  Cheryl Perich taught parochial school after being trained in Lutheran theology and “called” by the church congregation as a “commissioned” minister.  She consented to internal dispute resolution procedures applicable to church clergy and accepted tax benefits that only clergy may receive.  Her duties included teaching religion, leading students in daily devotions and prayer, and leading school devotions in rotation with other teachers.  After developing narcolepsy, she took a leave of absence.  The school arranged for another teacher to complete the school year and would have worked with Perich for a smooth transition back to the classroom—but she showed up with a doctor’s note and demanded immediate reinstatement, threatening to sue.  The church congregation rescinded her call and she sued, based on the Americans with Disabilities Act.  

Normally there are two sides to every story and a disgruntled employee like Perich is entitled to her “day in court.”  But when a church selects persons integral to its spiritual mission, the First Amendment says “hands off our hiring.”  The state has no business requiring a church to retain a “ministerial employee” who no longer satisfies the criteria for its ministry.  And when a church operates a religious school, the teachers are its lifeblood, carrying out the school’s spiritual mission.

See Death of a Christian Nation, Chapter 13 – “Behind Church Doors.”

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Federal Healthcare Law: Mandate Madness

You’ve been hearing about it in the news for over a year now—since Congress rushed to enact the 2,700-page “Patient Protection and Affordable Health Care Act” over the strong objections of the American people.  Never before has the federal government required every American to purchase a product or service—merely for existing, rather than for voluntarily participating in an activity the government may regulate. 

Congress knew there were constitutional questions.  Congress knew that legal challenges were on the horizon.  But they rushed forward, ignoring the will of the people and the Constitution.  Just minutes after the Act was passed, the lawsuits began.  Cases are now winding their way through the federal appellate courts.  Recently, the Fourth Circuit Court of Appeals, in Richmond, VA, is hearing oral arguments in two cases.   Other circuits will soon weigh in.  Eventually the U.S. Supreme Court will have to weigh in.

Deborah, author of Death of a Christian Nation, has written briefs for the Fourth and Eleventh Circuits about the constitutional deficiencies in the new law.  Congress asserts power under the Commerce Clause of the Constitution, which allows it to regulate interstate commerce.  But the decision not to purchase health insurance is inactivity—not the sort of economic or commercial activity Congress may regulate.  The federal government is a government of limited, specifically enumerated powers.  The health care law stretches the elastic too far and threatens to destroy any limits on congressional power. 

America is a land of liberty and freedom—not a land where the government compels every citizen to purchase a particular product or service.  Americans pay taxes but law-abiding citizens decide where to live, what to eat, what to wear, what to drive, what to buy.  The implications of the health care law are frightening.  It is important to care for the poor and sick, but not at the expense of basic freedoms Americans cherish.

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Life Affirming Legislation – Rights and Remedies

The U.S. House of Representative is considering some great new legislation known as the “NO TAXPAYER FUNDING OF ABORTION ACT” (H.R. 3).  Here are some important points about the proposed new law:

  • It would prohibit taxpayer funding of elective abortions as well as insurance coverage that includes elective abortion.
  • It offers conscience protections for health care providers, health care institutions, and health insurance providers.  The government would not be able to discriminate against any of these on the basis of their refusal to provide, pay for, cover, and refer for abortions.
  • These conscience protections also protect the many Americans who prefer to do business with health care providers and insurance companies that do not support abortion.
  • The law would create a legal cause of action for those whose conscience rights have been violated.

NO ONE should be compelled to act against conscience.  The abortion industry would like to coerce unwilling health care professionals and other providers into supporting their agenda—regardless of their religious, moral, or ethical convictions to the contrary.  This new law would grant permanent conscience protections and also ensure that your tax dollars are not siphoned off to fund abortions.

There is also encouraging new legislation being proposed in North Carolina:  “WOMAN’S RIGHT TO KNOW ACT.”  Any medical procedure required informed consent.  Abortion should not be an exception.  This new state law would ensure that no abortion is performed without the woman’s informed consent, and it would also create a 24-hour waiting period.

Praise God for these life affirming proposals in our federal and state legislatures!

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The High Cost of Free Speech

Sometimes it costs money to speak, particularly in the context of a campaign or heated political debate.  Candidates and their supporters must raise and spend funds in order to get their message to the people.  But what if—every time you spent a dollar—the government cut a check to your opponent?

That’s the essence of Arizona’s “Matching Funds” provision, an integral part of its state campaign finance law.  Some candidates choose to finance their own campaigns privately, while others opt for public funding.  Suppose you are a privately financed candidate.  When you—or a supporting independent group—spend money for your campaign, the government disburses an equal amount to each of your opposing publicly financed opponents.

This scheme discourages political speech, one of our core First Amendment rights in America.  It is especially unfair to independent groups formed to advocate for particular issues—pro-life groups, for example.  Justice and Freedom Fund filed an amicus brief in the Supreme Court, focused on how the law burdens these groups.  Arizona’s scheme allegedly guards against political corruption—a goal not applicable to independent advocacy groups.  It also attempts to “level the playing field”—a purpose the Supreme Court has held to be unconstitutional in our free country.

On March 28, 2011, the U.S. Supreme Court heard arguments in a case challenging Arizona’s law.  Deborah Dewart, Senior Legal Counsel for Justice and Freedom Fund, was there to listen.  Based on the lively questions the Justices posed to attorneys, it looks like a victory for free speech.  Stay tuned!

Check out: for more information on Justice and Freedom Fund.