WE KNOW THAT RELIGION IS GETTING MORE POLITICAL…

The law is clear and unequivocal—no charities that are tax exempt under section 501(c)(3) of the Internal Revenue Code may engage in partisan politicking. These religious, educational, and other charities may not “endorse or oppose…any candidate for public office.” This is unlike the standard for the category of 501(c)(4) “social welfare” organizations that came to public attention in 2014 when (largely-false) claims were made that the IRS had “targeted” conservative groups for additional time-wasting scrutiny before granting them tax-exempt status in 2012. Honestly, can the IRS be blamed for scrutinizing a tad more an application for the “Texas Tea Party,” since this “party” sounded more likely to be a political entity than, say, a “hookers and cocaine” party? These entities cannot have political activity as their “primary purpose.” That standard is vague and clearly allows a substantial amount of outright political candidate advocacy so long as you have some other educational function.

My first “official act” at Americans United was submitting an IRS complaint against the Church at Pierce Creek for its USA Today advertisement instructing readers not to commit the “sin” of voting for Bill Clinton. We also set up a program called Project Fair Play to report violations of the “no politicking” with church resources rule.

By 2000, the country was awash in electoral shenanigans involving breaching the “no politicking” rule for 501(c)(3) groups. This was a part of both major parties decision that playing a “God card” or two might bring in more Christian voters (or in the case of the Democrats, perhaps more “Judeo-Christian” voters).

CAMPAIGN 2000: IT'S A NATIONAL CONTEST FOR PRESIDENT, NOT PREACHER1

I spent much of the week before the Democratic National Convention talking to the press about Vice President Al Gore's selection of Sen. Joseph Lieberman as his running mate. Since Americans United is strictly nonpartisan, I expressed no opinion about the wisdom of the selection. However, there was plenty to talk about as soon as Sen. Lieberman introduced himself to voters in a speech that began with a prayer, continued with a recitation from the Book of Chronicles, and contained close to thirty religious references.

Was this an “over the top” effort to interject yet more religion into a presidential campaign already oversaturated with religiosity and pandering? When I was in law school I took a course in torts and personal injury law. There is something called the “one-bite rule.” The basic principle is that you're less likely to win a lawsuit against your neighbor if his dog has never bitten anyone until you. The dog was not previously known as a biter. The second person who gets a chunk of flesh removed will be in a much stronger legal position.

I took the same initial view of the senator's speech, including an hour-long interview on CNN right after he made it. Those of us inside the Beltway know Lieberman to be a sincerely devoted Orthodox Jew who says his faith is his moral compass. Most Americans, however, had never even heard of him prior to his selection as Gore's vice presidential pick. He took the opportunity of his selection speech to convey the importance of his personal religious devotion, and most Americans took it that way.

Here's the rub for me, though. After he said it and explained himself, it was time to move on. So far, he seems generally to have done so. If Lieberman or other candidates decide to begin every political pep talk with a prayer and a Bible verse or state their position and a proof text of scripture to boot, their actions will quickly proceed from being personal affirmations to political pandering. In other words, in a presidential campaign what we need is an emphasis on policy, not piety.

I'm convinced that most of us want the candidates to discuss what they see as the real solutions to the challenges that still face our nation. Repeated reliance on personal statements of faith would be seen by many as the exploitation of religion, even its cheapening by rhetorical repetition. This manipulation wouldn't benefit the political process or religion itself.

Regrettably, this campaign has already been marred by inappropriate church-state mixing. It was wrong for Gore to go to a New York church in February to receive a from-the-pulpit endorsement by the Rev. Floyd Flake, a powerful pastor. It was at least equally troubling when the Republican National Convention planners beamed into the hall via satellite the Rev. Herbert Lusk from his Philadelphia pulpit to announce that he (and apparently his entire congregation) was supporting George W. Bush. I should point out that even Pat Robertson's American Center for Law and Justice has produced a pamphlet of “dos and don'ts” for pastors that specifically recommends against political endorsements from the pulpit. Of course, it's also hard to overlook that we've been told by one of Gore's chief policy lieutenants that the Democrats are going to “take God back this time” and that Bush declared “Jesus Day” in Texas on June 10.

Project Fair Play has led to some interesting blowback over the years—from (now-former) senator and reverse-mortgage huckster Fred Thompson as well as an effort by the late senator Jesse Helms and still-incumbent senator Jeff Sessions to have me sent to federal prison for intimidating Christians and keeping them from voting.2

Congressional interest in our little project began in the summer of 1997. The first thrust started with a US Marshal and ended up with a meaningless report.

SUBPOENA SURPRISE: FRED THOMPSON COMES KNOCKING³

At first I thought it was just an office prank. AU Legal Director Steve Green came up to my office and said a federal marshal with a subpoena from the US Senate was in the lobby.

Sure.

I went downstairs expecting to find a man in a gorilla suit with a bouquet of balloons as a belated birthday gift. I told Steve to have somebody bring a camera.

But there in the lobby stood a man who looked like a stereotypical US marshal in a movie where the government serves notice on an organized crime lord. He flashed a badge—and it soon became apparent that he was a real marshal and he had a real subpoena from Sen. Fred Thompson (who played stereotypical political roles in movies before getting elected to the Senate in 1994). Thompson is chairman of the powerful Government Affairs Committee, investigating campaign irregularities and foreign money contributions in the 1996 election.

The first thought that popped into my head was, “What is this guy doing here? Did he come into the wrong building?” I don't even look like a gangster, a wealthy influence peddler, or a Hong Kong businessman. But the subpoena had Americans United's name on it. I signed for it and went into our conference room for a quick read.

It is an extraordinary document. It demanded that by August 22, 1997, Americans United deliver every piece of paper we produced during 1995 and 1996 that related to our involvement in election campaigns. That's easy—there aren't any.

But the subpoena also demanded all our documents about “publicly debated issues.” Here's where things get tricky. I can understand why the committee might have an interest in political involvement by nonprofit groups. By law, Americans United and other nonprofits are not permitted to intervene in partisan elections. But we have not done that—or even anything close to it.

But this business about “publicly debated” issues throws me. Americans United has every right, as an issue-based organization, to generate this type of information. It's why we exist. We are lawfully permitted to alert our members and the public to legislation posing a danger to church-state separation. We are permitted to advocate for church-state separation. However, internal documents about issue strategies, correspondence with individual AU members or members of Congress, or materials never released publicly should not be open to the prying eyes of a Senate committee.

Over the next few days, I got a quick legal education in the Kafkaesque world of congressional subpoenas. The bottom line: You have far fewer rights than you would in a court of law. It is exceedingly difficult to meaningfully challenge the breadth of your subpoena or claim any privileges—such as a lawyer-client privilege—to withhold documents.

If the committee wants something and you don't give it up or answer the committee's questions, you can be held in contempt of Congress. Only as you are packing your toothbrush for the federal penitentiary can you then file a lawsuit and make your case before a federal judge.

As for rules to determine who is called to give evidence to these committees, they are equally nonexistent. Forget “probable cause” that a crime has been committed, or “reasonable suspicion” of unlawful activity—statements familiar to viewers of Court TV and police movies. The Senate committee counsel freely admits they have absolutely no evidence to suggest that AU has done anything improper and that they “don't know what we're looking for until we see it.”

Essentially, this is a world-class fishing expedition.

SEN. THOMPSON AND CO. DIDN'T COME OUT AS EXPECTED4

My son Nick and I went to see the movie US Marshals recently. It's a sequel to The Fugitive.

Watching the movie, I was reminded of my own brush with a US marshal last summer. The Senate Committee on Governmental Affairs demanded AU turn over various documentation relating to our internal governance, activities, and other matters.

The committee wanted to see any documents we had relating to political activity. At that point, we consulted with the well-known Washington, DC, law firm of McKenna and Cuneo, which provided us with excellent pro bono services.

After due reflection, we turned over a package of documents. I have to say, this was not the stuff of which headlines are made. Most of the letters were from me to political candidates, explaining that Americans United is nonpartisan and thus unable to assist getting anyone elected to public office anywhere.

The committee also requested “any and all correspondence with the Internal Revenue Service.” This we complied with eagerly because it gave us the opportunity to send Senator Thompson all of our Project Fair Play letters reporting instances of religious groups and houses of worship abusing their tax-exempt status by intervening in partisan campaigns. I believed the committee would welcome this material, since it provided examples of the very type of wrong-doing it was allegedly eager to ferret out.

After our first filing to the committee, we heard absolutely nothing. There were no requests for more back-up material, no calls to clarify issues, and certainly no invitation to appear at the televised hearing to discuss our evidence. Then, abruptly, Senator Thompson announced on October 31 that he was shutting down the entire investigation. A few weeks later, our boxes of material were returned to us.

Last month, Thompson issued a report on his findings. In the short section on nonprofits, an astonishingly reckless charge appears—that all of the subpoenaed groups “were allegedly involved in a variety of questionable campaign practices.”5 In fact, no one at any time made such an allegation about Americans United. Representatives from other groups, including Christian Coalition officials, refused to even show up when subpoenaed to give depositions, but we maintained that we would welcome the opportunity to discuss the matter.

Since we gave the committee much of what they sought, isn't it curious that they didn't want to learn more? Not if that meant taking on the Christian Coalition, I guess. After all, Senator Thompson and ultraconservative colleagues in the Senate are the ones who benefit the most from the group's activities.

But the Thompson Committee was not a complete waste of time. The minority report, written by Democratic staff, has a whole chapter on the Christian Coalition and its repeated abuses of election law. A large number of the citations regarding improper Coalition activities come from Church & State magazine.

I like history. I like accurate history even more. Even though Senator Thompson apparently didn't want the truth, the Thompson Committee's minority report at least strike some blows for truth-telling.

Things then got even stranger in the US Senate. If they can't interrogate you, why not just send you to jail? (And, by the way, not bother to tell you that you're being investigated?)

When a member of the United States Senate wants the Justice Department to investigate you, there are apparently two things he doesn't need to provide: persuasive evidence that you have done something wrong and notification to you.⁶

I was more than a bit surprised a few weeks ago when I learned of a letter sent by Sen. Jesse Helms (R-NC) and five of his colleagues calling on Attorney General Janet Reno to launch a criminal investigation of Americans United for possibly violating a federal statute prohibiting intimidation of people seeking to exercise their right to vote.

I came to know about this only because a reporter called to ask about it. Someone in Sen. Paul Coverdell's office had faxed him—probably by accident—a copy of the Helms letter.

We put two and two together and came up with the likely scenario that Christian Coalition President Pat Robertson, after a meeting in June with the Senate leadership, had prodded several senators to take action against the group he hates the most, the group that he blames in large part for the denial of his much-sought Coalition tax exemption. That group is Americans United.

How could these senators possible justify asking for a criminal probe of Americans United? They claim AU is trying to “intimidate” religious voters because of two things: Number one, I told Congressional Quarterly that churches are unlikely to distribute Christian Coalition voter guides because of the Coalition's well-established partisan reputation. And number two, because we have sent memos to churches advising them that handing out biased voters guides could get them in trouble with the IRS. That's it.

Normally, government agencies begin investigations after they have evidence of “probable cause” of a crime or at least “reasonable suspicion” that one has been committed. It's hard to believe that six senators would become convinced of a need for this type of probe on the basis of this flimsy “evidence”—unless they had been persuaded to do it by a little bird (or a major campaign contributor).

The evidence against AU may be nonexistent, but the Department of Justice told reporters that an investigation had been started by the Public Integrity section of the Criminal Division.

During a recent appearance on CNN's Crossfire, I was asked about this matter by cohost Robert Novak. I called the Helms missive what it is—a witch hunt. We chose to release the letter, along with our evidence of Robertson's involvement and a demand for apologies from all six senators, chiefly because we felt wronged. We also wanted to demonstrate how simple it is for real intimidation to come from powerful government officials—undeterred by such mundane matters as the truth—when they are motivated by sycophantic desires to keep good relations with powerful supporters.

The irony does not escape me that it is the Christian Coalition that has played fast and loose with the tax and election laws for years, while AU does only genuinely nonpartisan public education. Curiously, one sentence in the senators’ letter is particularly chilling: They want Janet Reno to look into whether “injunctions” against Americans United might be appropriate (along with the fines and prison time provided in the statute they claim we violated).

Injunctions are court orders to stop us from doing things in the future, presumably publishing Church & State articles, posting material on the Internet, and sending out legal memoranda to religious groups telling them what they can and cannot do in the realm of voter education. This is very serious stuff.

Many reporters have recently asked me why Pat Robertson has such an interest in stopping AU. That's simple: He knows Americans United is effective. We have blown the whistle on his political shenanigans, his efforts to raid the public treasury, and his blistering insults about people whose religion differs from his own.

But this misadventure by the Senate had a positive end result—our vindication!

THE HELMS WITCH HUNT: A HAPPY ENDING TO AN UNHAPPY EPISODE7

Put away all those recipes involving how to bake cakes with files in them. It looks like the Americans United staff will not be going to a federal penitentiary after all, in spite of Pat Robertson's and Jesse Helms's efforts to put us there.

The senators’ letter actually began a six-month investigation by the Public Integrity Section of the Criminal Division of the Justice Department. In early January, I wrote Janet Reno suggesting that if the inquiry was over, we'd like to know what had happened; if not, we'd be happy to cooperate in providing information about our activities (something we had been happy to do in July as well). Finally, in early February, Deputy Assistant Attorney General John C. Keeney wrote me that the charges lacked merit and that the criminal statutes were designed to “reach only threats of physical or economic harm that are communicated to voters to stimulate or deter them from voting in federal elections,” not our efforts to inform people of what can and cannot be done in the arena of political education by churches and other tax-exempt groups.

Americans United, of course, issued a press release properly labeling Keeney's letter a full exoneration. Our statement also called for an apology by the six senators who acted on such flimsy evidence to try to stop our own constitutionally protected activity. Although it is safe to say that the initial demand to investigate us got more press attention than the decision by Ms. Reno not to, many reporters did want to close the chapter with an exoneration story. In so doing, several made efforts to contact the six senators. They got some curious responses.

Senator Don Nickles of Oklahoma had an aide respond to the Tulsa World. “The aide indicated that Lynn should not be waiting by the phone,” the story explained, adding that the aide said it would be “a cold day in Belize” before we got the apology. Alabama Senator Jeff Sessions sent spokesman John Cox to tell the Associated Press that he “thinks Americans United is one of the most aggressively left-wing organizations in America” and is still “offended” by our suggestions of Christian Coalition improprieties. Pardon us.

I don't think I really expected to be sent flowers or chocolates along with a letter of apology from any of the six. However, I didn't expect that they would choose the event of our vindication to send overzealous, ill-informed assistants to issue flip responses on the subject. After all, the statutes they believed we violated have serious consequences, including prison time, heavy fines, and stopping the publication of printed material.

From the beginning of our concern about illegal politicking by houses of worship, we have often suggested that church leaders sometimes get extremely arrogant in their belief that parishioners “need” their advice on which candidate to support (as opposed to real education on issues and help on genuine voter education). In a front-page story of the Washington Post just a few days before the South Carolina primary, religion writer Hanna Rosin suggests that the Christian Right's fervor in that state has “gone cold.”8 Near the end of the article, Rosin quotes conservative activist Cyndi Mosteller, who is not completely unhappy that the Christian Coalition fell apart there: “They have good minds and good hearts, but we will not be told by any organization who to vote for.”

AT THE FALWELL FOLLIES: JERRY FINALLY ’FESSES UP ON FOX NEWS CHANNEL⁹

One of my favorite stories about politicians and religion deals with President Calvin Coolidge, who, as the story goes, was once approached by a reporter after attending a church service and asked what the sermon had been about.

“Silent Cal” replied, “sin,” which led the reporter to ask, “What did the preacher say about it?”

Replied Coolidge, “He was against it.”

I feel the same way about lying. I stand firmly against it. So, indulge me for another column about the continued misinformation being spread by the Rev. Jerry Falwell. Recently I wrote about some of the false claims he makes about me; now I'd like to comment on some of the false claims he makes about himself and the Internal Revenue Service.

On July 15, I wrote a letter to the IRS alleging that Falwell used the resources and website of a tax-exempt entity, Jerry Falwell Ministries, to endorse George W. Bush for president. He also linked his site to that of former presidential candidate Gary Bauer's political action committee, the misnamed Campaign for Working Families, to make it easy to give money to Bush and other GOP candidates.

These actions are violations of federal tax law. Falwell is free to endorse a candidate in his personal capacity as a minister, just like a lawyer, an auto mechanic, or an organic farmer could. But he is not permitted to use the website or publications of a tax-exempt group to further partisan ends. Also, tax-exempt groups cannot use their resources to promote political action committees that seek to elect certain candidates to public office.

A day after my letter was delivered to the IRS, CNBC's Capital Report invited Falwell and me to debate the issue. Falwell made a convoluted argument, insisting that his website is owned by a non-tax-exempt group and therefore has the right to promote Bush. The whole thing sounded like one of those “hide the pea under the shell” games you wouldn't play at a backwoods carnival.

I responded that listeners would perhaps not want to take tax advice from Falwell, since in 1993 his Old-Time Gospel Hour (OTGH) had admitted to violations of federal tax law. The television ministry lost its tax exemption for politicking in 1986 and 1987 and was forced to pay $50,000 in back taxes.

Falwell went absolutely ballistic. He said I was lying. He announced that his church in Lynchburg, Virginia, had never lost its tax exemption. That's true, but irrelevant. As I pointed out on the air, it was the Old-Time Gospel Hour that ran afoul of federal tax law, not his church.

Falwell continued to deny that any of his organizations had ever lost their exemptions even for a minute. Remember, I put a premium on truth-telling. Before going on the air, I had reviewed media coverage from l993 and dug up an old New York Times story about the incident. I was right, he was wrong, and no manner of bullying and screaming was going to change that. Yet two weeks later, Falwell repeated the same denials in a debate with AU's Rob Boston on Fox New Channel's The Big Story with John Gibson.

Not long after that, we obtained a copy of the public statement the IRS required Falwell to issue in the aftermath of the federal agency's audit. Dated Feb. 17, 1993, and signed by Falwell, the document could not be clearer. It reads in part, “OTGH agrees to the two-year revocation of tax-exempt status, based on the IRS finding that it engaged in political activity, and the payment of $50,000 for tax deficiencies.”

On August 8, I got a golden opportunity to use the statement during another debate with Falwell on Fox News Channel. I took the document with me and literally held it up to the camera when Falwell started his denial rant again. The host told him to be quiet long enough for me to explain the significance of the statement.

And, proving that three is still a charm, Falwell was finally forced to concede the truth—but belittled it by saying he had agreed to pay back taxes only to avoid increasing legal fees to fight the ongoing audit. So much for principle.

There was a brief effort to repeal this IRS provision in 2002. The hearing on the topic had as its high point Congressman John Lewis's rebuttal to the Religious Right's claims about what Dr. Martin Luther King would have thought of the IRS.

The House Ways and Means Committee meets in just about the nicest hearing room on Capitol Hill.10 I'd never testified in this lavish venue before my recent appearance to discuss what is very wrong about two bills that would allow churches to engage in partisan politicking.

The room in the Longworth Office Building is so huge because usually it's overflowing with supplicants for tax breaks in the continual epic writing of the Internal Revenue Code. The room was less full when the Subcommittee on Oversight held a hearing May 14 on Rep. Walter Jones's “House of Worship Political Speech Protection Act” and Rep. Phil Crane's “Bright-Line Act.”

That's too bad. What we discussed that day is, in many ways, far more important than whether widget production gets preferred tax treatment or whether the alternative minimum tax is abolished. Even changing a few words in the law that applies to nonprofits and electioneering could have dramatically negative effects on both the integrity of religious institutions and the already-suspect honor of the campaign-finance system.

Much of the day, I felt like the bills’ advocates were literally talking about life on some other planet or astral plane. To hear the proponents of these measures talk, houses of worship aren't allowed to utter a peep about political matters. Proponents before the committee, like TV preacher D. James Kennedy and Colby May of Pat Robertson's American Center for Law and Justice, refused to acknowledge that tax laws currently permit virtually unlimited advocacy of moral positions. Pastors can speak out on issues all they want; they simply cannot endorse or oppose a candidate for public office.

Do Kennedy and Colby know nothing about recent history? Don't they read the newspapers? Houses of worship led the fight for civil rights and advocated for an end to the Vietnam War. Conservative churches successfully lobbied for “abstinence-only” sex education in many public schools and oppose legal abortion.

There's a crucial distinction between speaking out on the issues of moral justice and pushing for a particular candidate. Rep. John Lewis, who is one of America's most prominent civil rights leaders, made this crystal clear. Lewis was responding to Walter Fauntroy, a Baptist minister in Washington, DC, who had invoked Martin Luther King in explaining why he believes churches must have the right to endorse candidates.

Lewis was not persuaded. “I knew Martin Luther King; he was a friend of mine,” Lewis said. “He never, to my knowledge, endorsed a political candidate.”11 It was a clear message that moral persuasion on matters of justice can be just as effective as political power-mongering.

Kennedy's Coral Ridge Ministries has actually sent out fundraising letters that depict ministers with gags over their mouths and the IRS shuttering churches. Even allowing for a little hyperbole to pay the bills, this is simply fear-mongering and hysteria.

The fact is, only one church in modern history has actually lost its tax exemption for electioneering. The Church at Pierce Creek in New York blatantly violated the law in 1992 by placing a $44,000 ad in USA Today advocating the defeat of Bill Clinton. The church's pastor, who told reporters that he didn't care what the IRS or the courts thought, is still in business under a different corporate name.

Mr. May claimed that “conservative” churches are held to a tighter standard, noting that Pastor Floyd Flake received just a warning from the IRS after he endorsed Al Gore from the pulpit in 2000.

But May overlooked a few relevant facts. The pastor of the Church at Pierce Creek repeatedly said that he would continue to do whatever he felt like doing, while Flake acknowledged that he made a mistake and promised not to violate the law again. Despite the IRS's reputation for ferocity, the agency will in fact give any pastor a second chance. Pierce Creek's pastor turned it down and essentially dared the IRS to use the ultimate sanction.

Walter Jones and company did get a vote on this proposal under a House procedure known as a “suspension of the rules,” which usually occurs on Monday afternoons after debate on legislation that is not deemed controversial and is expected to pass easily. Jones must have been a bit aghast when his proposal barely got a majority vote. It hasn't been brought to the floor again!

The failure to have another vote is a bit surprising, given all the press this issue gets during an election cycle. There is even a well-funded effort by the Arizona-based Alliance Defending Freedom (ADF) (formerly the Alliance Defense Fund) called “Pulpit Freedom Sunday” that urges pastors to deliberately violate the tax code so that the provision can be tested in court. The ADF primarily makes this simple prohibition appear wildly complex and designed to virtually strap tape over the mouth of the preacher who has a thought about a social or political issue.

IT'S REAL SIMPLE: FEDERAL TAX LAW FORBIDS CHURCHES TO ENDORSE POLITICAL CANDIDATES12

As I was checking out at the grocery store the other night, I spotted a magazine called Real Simple, a publication with the subhead “Life Made Easier.”

What struck me was that it was 276 pages long. Perhaps it is just me, but life would start being easier if magazines like this were, say, 76 pages long. It is full of advertising for products I didn't even know existed. (Who knew you could buy shoes with an air-circulation system built inside or that you could now add “black cherry streusel” flavoring to your coffee?)

It also included articles on how to recycle everything you ever use; how to spend a day with the family picking apples; how to winterize your garden; how to buy new desk chairs; how to avoid over-cleansing, over-exfoliating, or over-moisturizing your skin; and even how to find out if your house is haunted. About two hundred pages in, you also learn “10 Ways to Be Happier.” How about starting by buying a few apples at the store and ceasing to worry about whether your home is haunted until a ghost trips you down the stairs? Just a thought: simplify.

This magazine did make me think about how some lawyers have a habit of taking all kinds of simple things and encrusting them with layers of linguistic and technical mumbo jumbo combined with a complete suspension of common sense.

I don't mean to knock lawyers too much. I am one, after all. But this tendency was apparent among Religious Right lawyers as AU labored prior to the election to stop illegal partisan politicking by churches and other religious charities.

The Internal Revenue Service says tax-exempt groups “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”

This doesn't suggest a huge gray area. Endorsing or opposing a candidate isn't something you do accidentally. Some do it on purpose: The Alliance Defense Fund (ADF), a Religious Right legal outfit, corralled thirty-one pastors into endorsing candidates from the pulpit on September 28. The ADF assumed somebody would report this activity to the IRS—which AU did—and then if the IRS penalized one or more churches with loss of tax exemption, fines or other actions, the ADF would swoop in and defend them in court.

A group of rabbis once asked me to speak on this topic, and one asked me how a religious leader would know if he had violated the law. I replied, “Ask yourself this question: Is what I am about to do or say with my congregation's resources done for the purpose of helping somebody get elected? If your answer is ‘yes,’ then don't do it.” This seemed like a reasonable suggestion to the assembled leaders.

The actions of the ADF's pastors (and others we have reported) are so flagrant that there is no serious doubt about what they intended. Could anyone believe that a Catholic bishop who posted a letter on the diocese's website noting that “the present democratic candidate for President” supports abortion and opposes the very concept of human freedom and comparing him to Herod Antipas, the Roman-era ruler who ordered the beheading of John the Baptist, is doing anything but opposing Barack Obama?

Consider the New Mexico pastor who plastered two pictures on the side of his church. One is a picture of a smiling baby, with the word “McCain” beneath it; the other the remains of an aborted fetus with the word “Obama” under it. These are then capped off with the phrase “YOU WILL DECIDE.”

Were these gentlemen merely trying to start a dialogue? Of course not. They were telling people whom to vote for. They were using church resources and bringing the clout of an institutional endorsement right into the partisan political battlefield.

None of this activity is “vague.” It is a blatant violation of federal tax law. To be frank, we don't have to worry about vague cases. There are plenty of the belligerent, stick-in-the-eye examples to be investigated. And they should be. No matter who has won the presidential election by the time you read this, the law needs to be enforced.

 

Last Sunday, as many as three dozen pastors may knowingly have violated federal tax law by endorsing US Sen. John McCain from the pulpit or attacking US Sen. Barack Obama.13

The campaign was organized by the Alliance Defense Fund (ADF), an Arizona-based Religious Right legal group founded by a collection of TV and radio preachers in 1993. The ADF hopes that the Internal Revenue Service will strip at least one church of its tax-exempt status, enabling a team of Religious Right lawyers to launch a test case. The leaders of the Religious Right, being the masters of euphemism that they are, called this monstrosity “Pulpit Freedom Sunday.”

So what's really going on here? I see the ADF gambit as part of an ongoing struggle to politicize America's houses of worship and create a powerful political machine that will work on behalf of the most reactionary right-wing conservatives—candidates who elevate divisive “culture war” issues like same-sex marriage, abortion, and religion in public life above all others.

Thankfully, forces are pushing back. Three former top IRS officials wrote to the tax agency, pointing out that it's not cool for tax attorneys to urge their clients to violate the law. In fact, it is a violation of the professional code that governs tax attorneys. The ex-IRS officials requested an investigation into the ADF's reckless ploy.

Even Jonathan Falwell, son of the late Moral Majority founder, seems wary. “I don't intend to endorse anyone,” he said recently. “I don't think it's my role to be telling anyone who to vote for.”14

All of this comes at a time when record numbers of Americans are telling pollsters that they want to see religion and politics decoupled. Put simply, Americans attend houses of worship for spiritual reasons; they are weary of political pulpits.

The IRS is aware that this massive program of deliberate law breaking is approaching. The tax agency has repeatedly stated that it intends to enforce the law and, in fact, runs a special project called the Political Activity Compliance Initiative to make sure nonprofits follow the law. Here's hoping the IRS will be watching as well.

So—why no investigations, much less tax revocations, during the Obama administration? I tried to answer this in a piece for the Huffington Post in 2013:

CHURCH ELECTIONEERING AND THE IRS: ANOTHER EXAMPLE OF TAX AGENCY FAILURE¹⁵

You might have noticed that there has been a little controversy about the Internal Revenue Service lately.

It appears that officials in a Cincinnati IRS office subjected some conservative organizations that were seeking a form of tax exemption to heightened scrutiny and additional procedures because they had words like “Tea Party” and “patriot” in their names.

For some years now, Americans United for Separation of Church and State has been urging the IRS to crack down on tax-exempt religious organizations that engage in blatant partisan electioneering. These are clear violations of the law, and yet the IRS seems to have done nothing to penalize scofflaws.

When I say clear violations of the law, I mean clear. I'm talking about religious organizations using their tax-exempt personnel and resources to intervene in elections. I'm talking about pastors standing up and telling their congregants which candidates to vote for or against, endorsing candidates in church bulletins, or taking other actions that step way over the line.

These activities are not permitted. No tax-exempt, 501(c)(3) organization—religious or nonreligious—can engage in behaviors designed to intervene in an election by endorsing or opposing a candidate. This is so because one of the conditions of tax exemption (which is a very lucrative benefit) is that the groups holding it must refrain from this type of overt partisan politicking.

But some houses of worship do it anyway. They openly violate the law and even brag about it. One Religious Right outfit, the Alliance Defending Freedom, even sets aside a Sunday each year to encourage political chicanery.

This is not a secret. Americans United has been pressing the IRS to put a stop to this for years. The agency continues to drag its feet.

In 2012, we reported a church in Leakey, Texas, that put a sign on its marquee reading, “VOTE FOR THE MORMON, NOT THE MUSLIM! THE CAPITALIST, NOT THE COMMUNIST!” (Real subtle, huh?) In Maiden, North Carolina, a Baptist pastor gave a sermon during which he recommended quarantining all gay people and leaving them to die out and concluded by telling congregants not to vote for Barack Obama. (He said, “I ain't gonna vote for a baby killer and a homosexual lover. You said, ‘Did you mean to say that?’ You better believe I did.”)16

Those are just two examples. There were many others. And we don't confine ourselves to churches that endorse Republicans. Over the years, AU has reported houses of worship for endorsing or opposing Democrats and third-party candidates, too.

The evidence in these cases is strong. As I said, some pastors even taunt the IRS by openly breaking the law and boasting about it. The IRS talks a good game about enforcing the law but does not act. Why?

Part of the problem may be due to foot-dragging at the IRS over some internal procedures. In 2006, Americans United reported the Living Word Christian Center in Minnesota after its pastor endorsed US Rep. Michele Bachmann (R-MN) from the pulpit. The IRS tried to audit the church, but the church sued, claiming that the audit had not been approved by the specific official named in the regulations. That position had been abolished in a reorganization plan. The church won the case in court. The IRS subsequently announced that it would develop new rules for what constitutes a high-ranking official and conducted a formal rule-making. That was in 2009. The IRS has subsequently done nothing. Yet this would not seem to a big deal. It's a regulatory alteration simple enough to be crafted by a few monkeys with typewriters, at random, by just letting them work in a closed room for a week. A procedural matter that could be resolved in an afternoon has been pending for five years.

This is not rocket science. As Americans United told the IRS in November of 2009, “Given the pervasiveness of church politicking violations, as well as efforts by some organizations in recent years to encourage houses of worship to blatantly violate federal law, having a clear and valid enforcement regime is absolutely essential for the ongoing protection of religious liberty.”17

But, wait, you may say, didn't the advocacy group Freedom From Religion Foundation (FFRF) get some kind of victory in a direct challenge to the IRS. Not exactly.

The Freedom From Religion Foundation sued the Internal Revenue Service for failing to enforce electioneering restrictions against churches and religious organizations, calling it a violation of the Establishment Clause of the First Amendment and of FFRF's equal-protection rights. FFRF filed the lawsuit November 14, 2012, in the US District Court for the Western District of Wisconsin.

The lawsuit claimed that the IRS had a policy of nonenforcement of the electioneering restrictions against churches and religious organizations, which it needed to correct. The IRS countered, stating that, since 2010, the agency has flagged churches involved with political intervention, including churches that submitted materials as part of Pulpit Freedom Sunday. Also, an IRS review committee determined that ninety-nine churches were marked for “high-priority examination.” The IRS has still done nothing to actually “examine” them however.

On August 1, 2014, US District Judge Lynn S. Adelman issued an order granting the joint motion for dismissal between FFRF and the IRS. Adelman's decision and order agreed that FFRF may voluntarily dismiss its lawsuit “without prejudice,” meaning FFRF can renew the lawsuit if the IRS reverts to its previous inaction.

And so we wait. Much as progressives criticize the Citizens United decision allowing virtually unlimited corporate spending in elections, ignoring the significance of church politicking could easily be more damaging to the electoral process.

BUT ARE POLITICIANS GETTING MORE “RELIGIOUS”?

Probably not, but you wouldn't know it by listening to them.

In Piety and Politics, I describe how the “God card” had been played up through the 2004 election cycle. Things have not gotten much better since. The media itself has become enamored with the religion of presidential candidates, generally unwilling to accept “no comment” as an appropriate response in a nation that, according to Article III of our Constitution is to have “no religious test” for public office. On the broader issues of the relationships of political figures and religious groups, the media itself has to shoulder some of the blame for exacerbating the problem.

The Bush-Cheney ticket was reelected in 2004, and there was a strong effort to mobilize the same Christian voters in 2006 midterm elections. Things didn't go as planned and Democrats had resounding victories in both the House and the Senate. Democrats took control of 233 seats in the House and 52 in the Senate. The marriage of fundamentalism in religion and politics seemed to have hit a bump in the road.

Just over six weeks ago, the Rev. Jerry Falwell told a group of pastors at a breakfast in Washington, DC, that they should have no worries about a Democratic takeover of Congress.18 Falwell assured the crowd that the Republicans would remain in power.

As he put it, “I think the Lord's going to take care of that.”

Religious conservatives had been convinced up until Election Day that the powerful machine they had built would defend enough incumbents to preserve their access to power from the White House to Capitol Hill. This year, instead of merely taking marching orders from national groups like Focus on the Family or the latest Falwell incarnation of the Moral Majority, Religious Right activists in places like Ohio ran grassroots-oriented campaigns to enlist local pastors to promote favored candidates.

I told the New York Times back in 2005 that this ground-level strategy was particularly dangerous for those of us who disagree with the goals of the Religious Right.¹⁹ Leaders of one group even used my comment on some of their literature to buttress what they were doing.

During the run-up to Election Day, AU continued to challenge church-based politicking. As part of the promotional tour for my book Piety & Politics, I had a chance to debate Ohio Religious Right leader Russell Johnson and several of his colleagues at a forum in Columbus in early October. Pastor Johnson led efforts to keep Republican gubernatorial candidate Kenneth Blackwell visible in evangelical churches and promote the reelection of US Sen. Mike DeWine. At the forum, Johnson was upbeat about his program of energizing the conservative base.

Johnson assured me that his church was not going to break tax laws—even though several complaints had been filed against his operation earlier this year by fellow clergy in the state. Undaunted, his group never missed a beat, working right until November 7.

The election results must have come as a shock: Democrat Ted Strickland beat Blackwell in a blowout, 60 percent to 37 percent. The GOP's DeWine was knocked out by US Rep. Sherrod Brown by twelve points.

The Religious Right lost some other champions as well, including two senators on its short list for the 2008 Republican presidential nomination: Virginia's George Allen and Pennsylvania's Rick Santorum. Ernest Istook, who as a congressman constantly advocated a constitutional amendment to bring government-supported prayer back to public schools, garnered only 33 percent of the vote as he attempted to become Oklahoma's governor. US Rep. John Hostettler of Indiana, author of the bill in the House of Representatives to deny successful litigant lawyers any attorney fees or costs in certain church-state cases, lost his seat, as did Kentucky's Anne Northup, accused of exploiting the “faith-based” initiative to get pastors to convince congregants to support Republicans.

Does this mean the Religious Right is now a toothless tiger? Sadly, no. Although I am not a hunter, I understand tigers who feel threatened just fight harder. Indeed, on November 8 many in the Religious Right began arguing that the GOP had lost because it hadn't placated religious conservatives enough! In other words, if the Republicans had supported even more extreme measures, they would have won reelection.

Sadly, any lessons about mixing religion and politics were soon lost in the massive run-up to the 2008 elections. The distinction between honest answers and religious politicking was at risk of being completely erased—on all sides.

GOD-TALK AND POLITICIANS: WHEN DOES HONESTY TURN INTO PLAIN OLD PANDERING?20

The New York Times cited “faith consultant” Mara Vanderslice, who argues that candidates should not use the phrase “separation of church and state” because of its negative connotations for religious voters.²¹ Oddly, in our First Freedom First polling and focus group work done with the Interfaith Alliance Foundation, the phrase went over very positively with the great majority of our samples.

I never suggest that a person's faith is all for show. My point is that, important as religion may actually be to many of these candidates, I honestly think most voters want to know what politicians will do to fix problems more than what metaphysical values or scriptural references, if any, could be used to justify those solutions.

Once you start talking about your faith, you also need to be prepared for journalists to ask just the kind of questions Soledad O'Brien raised in that recent televised presidential debate on CNN on religion: What do you pray about?—to Senator Clinton; What is your greatest sin?—to Senator Edwards.²²

Reporters can ask anything they want, but candidates also should be able to say the question is inappropriate (as Mitt Romney did on 60 Minutes regarding whether he engaged in premarital sex). But if you talk a lot about the topic of religion, and then answer more questions, don't be surprised if you eventually get asked, “Do you really believe in the Virgin Birth?”

This reached an early point of nonlucidity when presumptive 2008 Republican presidential candidate Mitt Romney decided to address how his Mormon background would and would not affect his governance were he to be elected President. It worked for John F. Kennedy in 1960; the results were far less certain for Romney in 2007. As it turned out, of course, Romney's star fell and John McCain joined with Sarah Palin as the Republican “dream team.”

ROMNEY, RELIGION, AND JOHN F. KENNEDY: TWO SPEECHES, TWO DIFFERENT VIEWPOINTS²³

I was disappointed in Mitt Romney's statement today on the role of religion in politics. It was billed in the press as Romney's version of the famous John F. Kennedy speech to the Houston Ministerial Association back in 1960.

But the two addresses were not very similar. Kennedy said, “I believe in an America where the separation of church and state is absolute…. I believe in an America that is officially neither Catholic, Protestant, nor Jewish—where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches, or any other ecclesiastical source—where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials”24

Romney took a different tack. While he affirmed religious liberty in principle, he said we are in danger of taking church-state separation too far and that we are at risk of establishing a religion of secularism. He is mistaken. The founders of our Constitution clearly meant for religion and government to be completely separate. That's the only way we can have real religious freedom in our incredibly diverse society.

I was particularly outraged that Romney thinks that the Constitution is somehow based on faith and that judges should rule accordingly. That's a gross misunderstanding of the framework of our constitutional system. Judges should make their decisions based on civil and constitutional law, not religious concepts.

I think it is telling that Romney quoted John Adams instead of Thomas Jefferson or James Madison. Jefferson and Madison are the towering figures who gave us religious liberty and church-state separation.

I was also disappointed that Romney doesn't seem to recognize that many Americans are nonbelievers. Polls repeatedly show that millions of people have chosen to follow no spiritual path at all. Romney ought to have acknowledged that fact.

With blazing speed, Texas governor Rick Perry sought to enter the Republican Presidential primaries in 2012—with a clearly perceived need to grab the “God vote.”

MY RESPONSE TO “THE RESPONSE”: WHAT I SAW (AND FELT) AT PERRY'S PRAYER FEST²⁵

I don't normally jet off to Houston when the mercury is hitting 102 there, but I just couldn't pass up the opportunity to attend Texas Gov. Rick Perry's big event at Reliant Stadium called “The Response.” I also participated in a counterevent the evening before and stirred up trouble in other ways.

“The Response” was initiated by the governor as a gigantic prayer rally for fundamentalist Christians. I found it strange from the start because I was unaware that the Texas governor job description included leading people to Jesus. Moreover, why did the governor need to start a prayer event rolling? Has Texas suddenly developed a dearth of preachers who could do that?

The more I learned about the August 6 event, the more troubling it became. Perry said that attendees would see people of all ages, races, and Christian denominations. This didn't sound very inclusive—although people running the event later made clear in response to a letter of mine and other criticism that they didn't want to bar anybody from attending because, after all, then people could learn about Jesus and presumably be converted. Again, I don't think this is a gubernatorial function.

Americans United, the Texas branch of the American Civil Liberties Union, the Houston AU chapter, and some local activists announced that we would put on a more inclusive and welcoming event at Mount Ararat Baptist Church. Our event, which included Humanists, Unitarians, Jews, Muslims, Hindus, Christians, and others, would share the Constitution, not only one faith tradition. A press conference to explain this event Friday morning drew fourteen television cameras. (Here in Washington only sexting scandals draw that kind of attention.)

I had an opportunity to appear on MSNBC's Hardball with Chris Matthews that afternoon, along with Family Research Council president Tony Perkins. Matthews's producers had created a clip highlighting outrageous statements by rally sponsors, including one pastor who claims that the Statue of Liberty is a “demonic idol.”

Perkins was asked whether he agreed with this, and looking absolutely nonplussed, responded that he didn't accept everything the other participants had said in the past. He didn't add any criticism of those fringe ideas though and, frankly, I don't think he scored too many points in his favor.

On Saturday morning, it was off to the stadium. From the shuttle, I saw bands of protesters outside the arena, along with some members of the notorious Fred Phelps clan, who were in town to proclaim that the organizers of “The Response” were not homophobic enough.

Inside the facility, I did some media interviews. Sandhya Bathija from AU's Communications Department was working to round up more interviews. As I headed to one, I encountered a muscle-bound fundamentalist weight lifter who wanted to argue with me about the Constitution. This guy belongs to one of those groups that tries to sneak religion into public school assemblies. I was in no mood to argue with him (or get snapped in half), so I kept it short.

A few minutes later, a fellow strolled up to me and asked, “Did anybody force you to be here?” He seemed to think that my complaint (he had seen me on the local news) was that people were there, not that the governor had induced them to come. He was joined by others who were perfectly affable, even though I had a distinct feeling that upon returning to their seats they would be tweeting that they had just come across a demon in the foyer.

Notwithstanding some good gospel bluegrass from Ricky Skaggs, I couldn't take it any longer. It wasn't because of the praying itself; it was what I knew was behind their calls for the nation to improve itself. They meant to stop all reproductive choice, block same-sex marriage, divert tax money to private religious schools, and fight a new crusade against Islam. That's not exactly the spiritual platform I'm on.

I ended my trip by going outside to greet the protesters (who had been placed in four different areas near the main road) and was happy to see the largely favorable response, including waves and honking, from passing vehicles. Of course, there were some ruder responses, but in America it's fine to protest even protesters.

Not everyone in Reliant Stadium was some hopeless bigot. It's just that, on balance, I enjoyed being with the folks at Mount Ararat Baptist Church and the protesters outside because they represent the true breadth of American thought.

Recall that I like top ten lists. When I use them in speeches, among other things, it gives people who may be bored some general sense of when the address will be over so they can go home and binge-watch The Walking Dead before going to bed.

Here is part of one I did at the John Danforth Center at Washington University in St. Louis during the heart of the 2012 presidential nomination campaign.

I enjoy Missouri, and as I was flying in this afternoon I noticed that you have a lot of open spaces here, a considerable amount of undeveloped land. I recently noticed the same thing when I was traveling to Indiana and Tennessee and even Florida over the last few weeks. Maybe somebody should tell Newt Gingrich we may not have to colonize the moon after all! Don't worry: I'll manage to disparage every candidate in the next forty-five minutes.

During the 1992 Presidential campaign between Bill Clinton and George H. W. Bush, Clinton campaign strategist James Carville put up a sign in his candidate's Little Rock headquarters with three points on it: point #2 simply read: “The Economy, Stupid.” Just like people think Humphrey Bogart said in Casablanca, “Play it again, Sam,” although he didn't, people think Carville actually used the now popular variation “It's the Economy, Stupid.” And of course, others have replaced “economy” with alternatives like “deficit,” “math,” and tonight “religion.”

Now, sometimes, like tonight, I do speeches that are in the form of top ten lists. I do this for two reasons. One, David Letterman does top ten lists that make him popular, and somebody in an airport once mistook me for David Letterman. (Frankly, I am much more frequently mistaken for Alan Alda or 1990s Republican Presidential candidate Steve Forbes: “I love your flat tax,” they say.) Second, if you know it's a top ten list, you won't find it as necessary to wonder “how the hell long is he going to speak?” You'll know by the number how close to the end I am.

I'm very worried about the future of separation of church and state: will it survive in a meaningful way? I'll tell you, there are a very large number of people throughout this country whose values, statements, and conduct appear to place them in some alternate universe governed by some constitution they apparently found while cleaning out their sock drawer. It is not the American “living” Constitution that reflects, increasingly, the search for individual freedom and justice: in other words, what the Constitution's purpose is.

So, for the next period, here are the top ten reasons I am convinced the current political climate, overtly and covertly, and in spite of being told by cable news commentators that it is about something else, is really about religion. This means I'm worried about whether we'll keep the tradition of real religious liberty alive for all Americans: the ones on the two thousand different spiritual paths people tread and the twenty to twenty-five million Americans who are nonreligious and quite comfortable about that. So, here is why this election is all about religion.

First, one party's candidates think they are chosen by God. For the first time in modern history, four people originally seeking the Republican nomination said that God had chosen them to run. OK—now we know there was a failure to communicate. Herman Cain out of the race; Michelle Bachmann out of the race; Rick Perry out of the race. The only possible God appointee still in is Rick Santorum, and Rick reminds us that God told his wife, not him, that he should run. This fact alone could be yet another confirmation that women are often better listeners than men, although in Rick's view they still shouldn't go too close to combat and should be instructed on contraception by the Catholic Bishops. By the way, this is presumably the same divine voice that told former Arkansas governor Mike Huckabee not to run and to stay on Fox News so he could afford the big mansion he's building in Blue Mountain Beach, Florida.

Second, the Bible, not the Constitution is becoming the basis for federal law. Ron Paul told a meeting in Washington last October that he didn't just get his position on abortion from the Bible (odd because the Bible doesn't even mention the topic) but that he derives all of his policies from the Bible, including his tax policy and his defense policy. Isn't he mixing up the Constitution with his Holy Scripture? It can get confusing.

But, see, we aren't supposed to be making policy based on anyone's interpretation of their holy writ; we are supposed to be using the commonly shared values found in our foundational document: the Constitution.

So now we come to reason number three that I am convinced that it's all about religion: Democrats are working hard not to get too far behind on the Jesus momentum. Apparently, the more nonconstitutional one party gets, the more the alternative starts ratcheting up its religiosity quotient. For example, in the week following the release of Gov. Rick Perry's now somewhat famous television advertisement labeling the Obama administration as antireligious—the first salvo in what has been called “The War on Religion,” two curious things happened. First, HHS Secretary Kathleen Sibelius rejected the scientific findings of the FDA, which had concluded it would be a good thing to allow access by women under seventeen to over-the-counter Plan B contraceptives. Rejecting this was a huge win for the Religious Right. And that Monday morning, Joshua DuBois, the head of the President's Office of Faith-Based Initiatives, just happened to send out a color photo from the Associated Press to his enormous email list of the Presidential family walking across the street from the White House to a church. Curiously, the mere fact that this was deemed “newsworthy” just reminded a lot of people that he usually doesn't go to church. And the President went to the incredibly rightwing National Prayer Breakfast last month and gave a speech in which he more or less suggested that Jesus would like his tax reform package.

I don't want every civil libertarian among you to get too depressed. “God talk” overkill seems to be having some unexpected blowback. Just a week after Governor Perry's war on religion ad hit YouTube, it had received over seven hundred thousand “thumbs down” clicks, the third largest negative reaction to anything ever posted in the history of the website. (And, yes, he was beaten by a Justin Bieber video.) In addition, the Southern Baptist Convention recently released a poll they had done in which 16 percent of Americans said they were more likely to vote for a candidate who regularly shares his or her religious beliefs publicly, while a whopping 30 percent say such “sharing” alone would make it less likely they'd vote for that candidate.

Fourth reason: We are told by media outlets as diverse as the Fox News Channel and the Drudge Report (just kidding about diversity) that there is a mounting “war on religion” (well, actually, the Christian religion) in America. I testified a few months ago before the House Judiciary Committee, now chaired by Arizona congressman Trent Franks, on the state of religious freedom in the United States. Mr. Franks began the event by noting that “one Christopher Columbus was exercising his religious liberty when he went out into the oceans to find the new world and came upon America.”26 As I recall it he was looking for India, and Mr. Franks of course also failed to recall there actually were people here, they had a set of indigenous religions, and Chris and the variety of European successors did all they could to convert them or wipe them out by shooting them or spreading disease.

With that as the backdrop, little wonder that he didn't seem to accept my premise that if you are a member of the majority Christian faith still here, there is what I called “a dizzying level of religious freedom” and that the challenges to practicing you faith or asserting your lack of it arising almost exclusively from minorities in America. I gave examples, of course. Down in Murfreesboro, Tennessee, the construction of a mosque was delayed by vandalism, bomb threats, and a baseless lawsuit supported by the lieutenant governor, who thinks Islam is not a “real religion.” In Johnson County, Tennessee…I am not trying to pick on this state; there are worse states on the separation of church and state scale; at least Tennessee doesn't have a governor who wants to have taxpayers subsidize construction of a Noah's Ark-themed water park—that's in Kentucky. But back to Johnson County. We won a lawsuit there, where an atheist simply wanted to put up a display documenting the historical roots of church-state separation in a courthouse public forum that already displayed the Ten Commandments. One councilmember there said he was happy when anybody moved there, but if that person didn't believe in God, it'd be even better if he left town.

What even I—a man who is rarely surprised by anything said, done, or even contemplated by the Religious Right—found surprising was the bizarre set of examples of anti-Christian activities used by the other two “Republican-chosen” witnesses: Colby May, chief counsel for Pat Robertson's American Center for Law and Justice and Bishop William Lori of Connecticut, who is now head of the new official lobbying office for the Conference of Catholic Bishops.

The Robertson-ite [May] began with the tale of a sex education “assembly” in Massachusetts that he claimed was so graphic that it violated the religious freedom rights of parents in the school, presumably because it contradicted their approach to sexuality information. That approach, apparently, is the one where you say, “Don't have sex; it's ugly anyway.” Now, the parents actually had the right to opt out of the whole sex education program, but they didn't get notice of the specific assembly, which was called “Hot, Sexy, and Safer.” A federal court ruled that there was no constitutional violation of the parents’ rights, and this case occurred in 1995. Attorney Colby May cited no other courts that followed the decision, nor any other incidents involving anything like this. I was tempted to say the case was so old that the program would now probably be called “Lukewarm, Sagging, But Still Safer.”

The Bishop, on the other hand, was moaning first about same-sex marriage, which, as we all know, clearly disrupts the authenticity, stability, and historicity of “marriage” and probably makes men from Georgia go astray.

But more disturbing was his kind of radical redefinition of the meaning of “religious liberty,” which presents us with proof number five: The First Amendment's protection of religion means something new this year. Religious freedom is not the freedom to worship anymore or the freedom to evangelize: it is the right to get huge amounts of tax money and then ignore any and all laws you don't like.

Lori claimed, for example, that certain Catholic Church-related charities were being denied grants because of anti-Catholicism. In fact, Catholic-related charities appear to be getting more funding in this administration than they did in the Bush Administration. Bishop Lori, though, decried the specific denial of a grant to help sex trafficking victims. Now, sex trafficking victims have by definition been sexually abused; some are rescued literally from brothels where they are being forced to “work.” The Catholic charities, however, will not give them Plan B, or help pregnant victims to obtain abortions, or even counsel them about where they could get abortions. Is it any wonder that a group that will not promote a truly comprehensive program on trafficking is passed over for ones that will? This is like complaining that you didn't get a grant for afterschool mentoring in reading after you concede that the mentors are themselves illiterate.

But it actually gets worse. The Bishop also thought that there needed to be more exemptions to other federal programs so, for example, Catholic charitable institutions could take government funding for adoption and refuse to place children with gay or lesbian couples, even if the city in which they were operating had strong local or state statutes protecting access for LGBT communities. Doesn't all this sound a little like what the Right falsely claims the LGBT community wants: “special rights”?

The sixth reason I say this election is about religion is that following up on the notorious decision in the Citizens United case, there is elevated talk that even tax-exempt churches should be allowed to engage in partisan electioneering. What could possibly go wrong with having every “ministry” from the Little Brown Church in the Vale to the television megaministries of prosperity gospel pastors like Benny Hinn just endorse candidates from the pulpit, send out pledge envelopes for their favorite pol, and maybe just ship money from the collection plate to the candidate's office (money is speech you know).

Remember the first primary. It was long ago; in fact, I think dinosaurs still roamed the earth at that time. There was a change in the election count for the Iowa primary a few weeks after it had occurred and Rick Santorum won by thirty-four votes, not lost by eight. Former Senator Santorum's extraordinary showing was made possible largely because of the personal endorsements of some of Iowa's most influential evangelical pastors. What those pastors tried not to do, though, was risk violating federal tax law by endorsing or supporting a candidate with church resources. North Carolina Congressman Walter Jones has been trying to change this for years and remove the longstanding tax code's prohibition against churches endorsing or opposing any candidate for public office. Americans United has always opposed this. But this year, joined by Democrat Emmanuel Cleaver—from right in this neck of the Midwestern woods, Jones is trying to pass legislation that gives all nonprofits the right to endorse candidates, and it seems to me that then all of them can make the same contributions that Halliburton or some Super PAC can make. Well, we still oppose it. And the good news is over two-thirds of the American people in the latest poll are on our side.

This is all consistent with the best from our history. The Rev. Dr. Martin Luther King Jr. spoke in religious institutions almost every day of his adult life but never once told a congregation or gathering there for whom to vote.

Seventh clue: Some of the talk about education is downright biblical and most of the changes sought are thinly disguised efforts to subsidize private religious education. Rick Santorum has even attacked President Obama's plans to get more scholarship aid for young people to go to college as an obvious effort to “secularize” young people. Everybody running seems to be willing to deflect more money from public schools to private—overwhelmingly religious—ones. Since the 2002 decision in the Cleveland voucher case, few successful voucher programs have been implemented if they are challenged under state constitutions. This hasn't stopped the ideologues though.

Eighth, Democrats and Republicans are getting attached to the idea that “faith-based” institutions that do work in the community are obviously entitled to get government funding to do so. One real tragedy of the Obama administration's continued commitment to, and indeed expansion of, predecessor George Bush's “faith-based initiative” is that it normalizes something truly abnormal in American history. For most of our history eleemosynary organizations—charitable groups including churches and other places of work and worship—were assumed to be responsible for raising money from believers for all their activities: from paying the preacher, to fixing the church roof, to setting up programs for the homeless. But these days, the idea of “equal access” to money by religious and secular groups is becoming the norm. It is terribly mistaken.

The greed of these groups is insufferable. In many communities, Catholic Charities, the Salvation Army, and the domestic arm of World Vision suck up such a high percentage of funding that about one third of the smaller shelters, agencies, crisis centers, and training programs have gone out of business since 2008. To compound the problem, the big boys have the audacity to say, “If you make us abide by a lot of government rules or the civil rights acts, we'll stop working and the poor will be without help.” There's a moral position for you! Here's some good news: We win when we call their bluff about this. In the District of Columbia, Catholic Charities said it would move its (yes, heavily subsidized by government) social programs out of DC if the City Council passed the same-sex marriage bill. Again, this is a moral stance if I ever heard one. The Council passed the bill and Catholic Charities only got out of the adoption placement business. It turned out that it was only seeking help for thirty-four kids and those children were immediately picked up by other secular groups, and religious charities not stuck in the twelfth century.

Ninth, at the nonpresidential level (although candidates will eventually get drawn into this), we are learning that politicians love “states’ rights” unless those pesky state constitutions protect religious minorities from having to shell out money for the activities of religious majorities. This is why they are trying to change them, starting down in Florida with Amendment 8 on the November ballot. Amendment 8 is an effort to literally erase the separation of church and state provision in Florida's constitution, a section mirrored in the constitutions of thirty-seven other states.

In my view, the most important decision ever written by the late Chief Justice William Rehnquist was in a case called Locke v. Davey. This issue was whether the state of Washington's Supreme Court was permitted to interpret its “no aid to religion” clause (not dissimilar to the one in Florida and the one in your state's constitution) in such a way as to refuse to fund the education of a seminary student in the same way that it provided scholarship assistance to law students or agriculture students. Mr. Davey said that violated the US Constitution. Rehnquist, who conceded that he wasn't a fan of the stringent no-aid provision, nevertheless ruled in a 7–2 decision that the Washington Supreme Court had the right to interpret its own constitution in a way that would give a broader “separation” between church and state than had been recognized in the First Amendment. Now, this is what I call states’ rights properly understood.

And the tenth piece of evidence that religion is indeed what this election cycle is about is the nearly apocalyptic biblical approach to hating the federal courts. Here, again, is Rick Santorum: “Satan is attacking the great institutions of America, using the voices of pride, vanity, and sensuality as the root to attack all of the strong plants that had deeply rooted in the American tradition.”27 This is not merely a challenge to block even the moderate jurists President Obama has somewhat haltingly tried to appoint to the judiciary, but to challenge the very ideas of an independent judiciary. The new mantra of the Right is that we don't have three coequal branches of government, that the courts are an inferior branch that has no final authority. Some even question the principle established in Marbury v. Madison in 1803 that the Supreme Court can declare statutes unconstitutional. And, then, of course, the logic of these states becomes impeccably perverse when Newt Gingrich notes that judges should be accountable to the president and Congress for their rulings, arguing a few weeks ago that federal marshals should be called in to forcibly bring judges to appear at congressional hearings about decisions Congress doesn't like. This feels particularly personal to us at Americans United because he calls out by name judge Fred Biery, who granted us a temporary restraining order in a case in Texas challenging use of prayer at a high school graduation. In a speech in October, Gingrich called on Judge Biery to be “summarily dismissed.” By who was not made clear, but perhaps he thinks he has that power himself already. Gingrich, particularly on matters of religion in the courts, sees the courts as, at least, figuratively—perhaps literally—“demonic.”

See, we are at the end, and for the first time tonight I will admit I lied to you about something. We are not quite finished: thirty seconds to go. This lecture may have depressed some of you. Even leaders many of you like seem to have lost their way through the thicket of religious pressure groups and dubious new spins of the real meaning of the Constitution. But all is not lost. The only way we will without uncertainty lose the heart and soul of the First Amendment if we give up the fight. Hopelessness is the biggest challenge: apathy is a suicide pact with our constitutional values. The great constitutionalist, Justice Learned Hand, once said: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”28 I travel the country; people like many of you come out. Many of you defend the wall of separation against the dynamiters, the bulldozers, the well-heeled termites who would tear it down, brick by brick or board by board. Those of us in Washington couldn't help save it without all of you. For those of you who do, a big thank-you. To all: Thanks for coming out tonight.

As an aside, Pat Robertson once again seemed to have his divine communication wires scrambled about the 2012 campaign—President Obama was re-elected easily with 51 percent of the electoral vote.