BLOGHow the Hawaii Attorney General Got It Wrong in His “Guidance” to Churches on Political Activity

By Erik W. Stanley Posted on: | August 21, 2018

The upcoming election season seems to have government officials in Hawaii on edge.

In July, the Attorney General of Hawaii issued a press release that offers “guidance” for nonprofit organizations, including churches, on political activity. In reality, it is a thinly veiled attempt to intimidate and frighten Hawaii’s houses of worship into silence on the upcoming elections for political office.

There are several problems with this “guidance,” which is why I sent a letter to the Attorney General of Hawaii this week.

First of all, the Attorney General for the State of Hawaii has no authority to enforce federal tax law.

The tax code restrictions that the Hawaii AG referenced in his “guidance” are federal and may only be enforced by the Internal Revenue Service, not a state attorney general. The fact that he released guidance on a law he has no authority or ability to enforce makes it clear that the “guidance” was nothing more than a tactic to intimidate houses of worship from speaking during this election season.

The “guidance” also focuses more on what houses of worship cannot do than on what they have a constitutional right to do during an election season.

For example, houses of worship may:

  • Discuss issues of public importance without fear of jeopardizing federal tax-exempt status;
  • Discuss candidates’ positions on various issues;
  • Host candidate forums;
  • Distribute non-partisan voter guides;
  • Urge their congregants to get out and vote; and
  • Rent out their facilities to candidates on the same terms as any other public group.

In short, houses of worship are permitted to do many more activities short of endorsing or opposing candidates for office without endangering their federal tax-exempt status. A fact the Attorney General of Hawaii conveniently ignored.

It’s also worth noting that religious leaders do not surrender their First Amendment freedoms when they enter the ministry. Acting individually, they enjoy the same right to speak as any other citizen. They may freely support or oppose political candidates without violating federal tax law or jeopardizing their church’s tax-exempt status.

Finally, pastors and church leaders have a constitutional right to speak freely from their pulpits without fearing government intimidation or enforcement.

Alliance Defending Freedom firmly believes that using the federal tax law to take away or threaten this right is unconstitutional. That’s why we have offered—and reiterate that offer now—to defend, free of charge, any pastor or church leader who is threatened or punished for something that is said from the pulpit during a church service.

This vague and misleading “guidance” from the Attorney General of Hawaii is nothing more than an attempt to use federal tax law to silence the voice of houses of worship.

The truth is that government has no right to intrude into a house of worship and censor religious speech. So houses of worship in Hawaii can breathe a sigh of relief – there’s no need to fear that they will somehow violate federal tax law simply by participating in the life of their communities and their state.

Erik W. Stanley

Senior Counsel, Director of the Center for Christian Ministries

Erik W. Stanley serves with Alliance Defending Freedom as senior counsel and director of the Center for Christian Ministries.

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