But most of the comments on the piece get it.
Stanley Fish, who is usually quite careful in his treatment of First Amendment questions, took his eye off the ball in this one. When he deals with novelists and academics, he’s always careful to note that a publisher’s decision not to pick up and distribute a novel or a college’s decision not to grant tenure to a professor are not strictly First Amdendment issues, since that statute has to do with a government’s imposing imprisonment and other penalties that a government has the power to impose. In this case, the IRS isn’t going to throw anyone in jail; it’s just going to tax entities that are acting like lobbying organizations rather than non-profit community services. It’s the same principle that drove the (failed? I lost track of it) Senate bill that would have made “religious” organizations who take in more than $25,000 per quarter for lobbying register as lobbyists. (Not surprisingly, the ladies that protested too much back in ’07 were Jim Dobson’s Focus on the Family and Jay Sekulow’s American Center for Law and Justice.) It ain’t persecution; it’s making people own up to what they are. Fish is right to note that some congregations picture themselves precisely in that capacity:
But the logic and force of Locke’s arguments depend upon his conceiving of religion as a private matter, as a relationship between one’s soul and one’s God, and therefore as a practice exercised in the church or synagogue or mosque rather than in the arena of political action. If, however, your religious beliefs take a more robust form than Locke’s and require that you labor to bring the world into conformity with God’s word and will, the Johnson amendment, or any other limitation on the free exercise of what you take to be your religious duty, will be seen as an unconstitutional interference by the state in the proper business of the church.
My argument would be that a congregation that wishes to proceed in the course of backing presidential candidates might be following their understood mandates, and I encourage them to do so if that’s what their consciences dictate. (I disagree with that approach, preferring Church to stand in prophetic judgment of all government entities rather than to be a cheerleader for this or that one, but I’m an odd critter that way.) But they should pay taxes just like PAC’s and other organizations do when they follow their mandates. The question here is not church and state but partisan and nonpartisan. Partisan organizations pay taxes, and churches who choose to become partisan ad agencies should do the same. If nobody’s getting locked up and no churches are blockaded by the FBI, this is not a First Amendment issue.
I started drafting this just a couple hours after Fish’s column hit the web site but waited to release the post until today, and in the intervening time most of the first hundred fifty or so comments hit this very point, so if I am wrong, I’m at least wrong with a few other people.