Washington— Intense interest in the presidential election, combined with the desire among many rabbis to speak out when pews are packed for the High Holy Days, has left many Jewish clergy grappling with what they can say from the pulpit as they navigate the legal thicket of church-state regulations.
The Internal Revenue Service has recently increased its scrutiny of religious institutions, which are legally restricted from backing candidates. This has come to the fore due to a number of Evangelical Christian leaders who are planning a direct challenge to these restrictions. Jewish communal leaders are probing similar controversial territory as they look to get involved in the presidential election.
“Everyone knows the basic rules,” said Rabbi David Saperstein, director and counsel of the Religious Action Center of Reform Judaism. “You can talk about issues, but you can’t endorse candidates and parties, but there are all these gray areas in between that people are struggling with.”
Saperstein’s center organized a recent conference call with an Internal Revenue Service representative and a group of Jewish communal leaders, about 150 in all. “The questions didn’t stop. They were unremitting for an hour,” he said.
Where is the line between talking about issues and endorsing a candidate for office? Can a rabbi endorse on his personal blog? What if a rabbi’s synagogue Web site has a link to that personal blog? And would support for a candidate on a social-networking site like Facebook or MySpace trigger an IRS investigation of a synagogue?
Meanwhile, a socially conservative group, the Alliance Defense Fund, is recruiting pastors across the country to offer explicit endorsements from the pulpit in a September 28 protest to defy the IRS rules. The Arizona-based group wants to trigger an IRS investigation and a test case that can go all the way to the Supreme Court, where it hopes a 54-year-old prohibition against political endorsements by tax-exempt religious groups will be thrown out.
The ADF and the pastors who take part in the protest are on very shaky ground, according to Marcus Owens, a Washington attorney who worked most of his career in the IRS division that oversees tax-exempt organizations. As the division’s director from 1990 to 2000, he was the chief decision maker when it came to enforcing rules involving tax-exempt and political organizations.
“I don’t see them changing 20 years of court law,” Marcus said in an interview.
The ADF and its attorneys are jeopardizing the organization’s own tax-exempt status by encouraging the religious leaders to blatantly flout IRS rules, including ethics rules that prohibit attorneys from encouraging willful violation of the law, Marcus said. He joined two other former top IRS officials in a September 8 letter to the agency that warned, “This activity — coordinating mass violation of Federal tax law — is clearly ‘incompetent and disreputable conduct’ … [that] presents a direct threat to the integrity of our tax system.”
The courts have mostly backed up Congress, which has only toughened religious political speech restrictions over time. But a test case hasn’t reached the Supreme Court since the 1954 amendment offered by Senator Lyndon Johnson to the Internal Revenue Code that prohibited not-for-profit, tax-exempt 501(c)3 groups from supporting or opposing a candidate for office.
A case testing restrictions on implied or inferred speech, in which a parishioner or another individual who filed a complaint based on a perceived endorsement rather than on a blatant statement, might be the type of case the Supreme Court would take and could narrow or clarify speech restrictions, according to Marcus. But courts have consistently upheld restrictions on explicit endorsements.
Some religious leaders say that endorsements, besides proving potentially divisive with congregants, signal the use of church resources to support a candidate, which could invite government regulation.
“The argument is not a freedom of speech argument, because they have exactly as much freedom of speech,” Saperstein said. “It really is freedom of the pulpit. If a church wishes to give up their tax exemption, they can, and the government can’t regulate them.”
Rabbis and Jewish communal leaders have increasingly stepped up their own public advocacy for candidates. But just as it has among most non-Jewish clergy, the effort has remained outside the synagogue. The recently launched grass-roots organization Rabbis for Obama is one such example.
The growth of new forms of electronic communication, such as social-networking Web sites, has made it easier for individuals to express their personal political preferences. A synagogue Web site may link to a rabbi’s personal Web site or blog that includes a direct candidate endorsement as long as the personal site normally addresses a range of nonpartisan political issues, according to Saperstein. Linking to the rabbi’s personal site only after he or she endorsed a candidate could attract IRS scrutiny, he said.
“The synagogue, the church, should be a place where there is refuge from politics and the focus on the spiritual,” said Rabbi Jeffrey Wohlberg, the recently retired senior rabbi at Adas Israel in Washington.
“Certainly my congregants know my political feelings,” said Wohlberg, vice president of the Rabbinical Assembly, which is a trade association of conservative rabbis. “But not because I make them the source of my preaching, but because I want them to understand that moral issues impact on our lives in many ways.”
Wohlberg and other Washington-area rabbis said they are used to walking a finer line, in part because their congregants are more likely to be elected public officials, lobbyists, congressional or administration staff, or journalists knowledgeable about issues and often prone to correct errors, real or perceived.
The issues and positions that a rabbi addresses — from tax policy, energy, the Iraq war and racism to health care — no doubt will be interpreted by some as an endorsement. “It gets close even if we’re not endorsing a candidate,” said Rabbi Steven Foster of Congregation Emanuel in Denver.
Foster, who spoke at the Democratic National Convention, doesn’t intend to say “Vote for Obama.” But he knows that his planned Rosh Hashanah message about “shame on us” for not standing up to racism or opposing Supreme Court nominees who wish to restrict abortion rights will be viewed as a pro-Obama sermon.
“I know there will be some who will be against what I say and may walk out,” Foster said. Still, he hopes to persuade the wavering, and maybe even a few who disagree.