Contributed by Teresa Nelson, Legal Counsel for the ACLU-MN
With two hotly contested constitutional amendment proposals on the November 2012 ballot many non-profit organizations, including the ACLU of Minnesota, have entered the fray to urge voters to "Vote No" on the freedom-limiting marriage amendment and the voter restriction ballot questions. Numerous non-profits have weighed in on both sides of the amendments including many churches that display "Vote No" and "Vote Yes" signs in prominent view. The ACLU-MN has received numerous calls from individuals concerned that churches are weighing in on the amendments by displaying signs. The most common question that they ask is whether or not that jeopardizes their tax-exempt status. The second concern that people have expressed is that it is improper for churches to weigh in on matters of government such as our constitution given the First Amendment notion of separation of church and state.
Both concerns are misplaced. Churches, like other nonprofit organizations, generally enjoy tax-exempt status under §501(c)3 of the Internal Revenue Code. The law classifies various activities related to public policy and politics into three categories: General Advocacy, Political Campaign Activity, and Lobbying. General Advocacy includes work to influence public opinion on issues (i.e. the organization's general views on voting rights and/or marriage rights), and to encourage voter participation with voter registration drives, get out the vote activities, voter guides and candidate forums. General Advocacy is permitted as an educational activity without any limitations. Political Campaign Activity includes activities that favor or oppose candidates for public office, such as directly endorsing a candidate, making contributions to candidates or PACs, public statements for or against a candidate and distributing materials on behalf of or opposition to a candidate. Political Campaign Activity is absolutely prohibited and 501(c)3 organizations risk losing their tax-exempt status by engaging in activities on behalf of candidates for public office. Lobbying activities include work to influence legislation by having direct contact with legislators and encouraging members of the public to contact legislators, and advocating for or against a public referendum. 501(c)3 organizations may conduct some lobbying activities as long as it is only a small part of the organization's activities (more detailed guidance from the IRS on this issue can be found here). Because advocacy for and against ballot proposals is considered a lobbying activity, churches and other nonprofit organizations may urge support or opposition to the proposed constitutional amendments in numerous ways including posting signs on their property and urging others to vote their preferred way on the amendments.
While the Establishment Clause of the First Amendment requires the government to remain neutral when it comes to religion, there is no corresponding requirement that religious groups remain silent about matters of government. In fact, the same First Amendment rights that protect the ACLU of Minnesota's right to urge people to Vote No in November, also protect the rights of churches to urge people to vote their way on the amendments. While it is improper for the government to enact laws to promote religious beliefs or because a particular church demands that the law be passed for religious purposes, the rights of religious groups to advocate for laws that fit their religious beliefs is firmly protected by the First Amendment.