Originally published 18 May, 2013. Updated 23 May 2013 (below).
From the 16 May 2013 Memo to the Hon. Aaron Schock, Member of Congress, Committee of Ways and Means, from Thomas Brejcha, Peter Breen, Sally Wagenmaker, Esqs. Thomas More Society.
The IRS asks:
Please explain how all of your activities, including the prayer meetings held outside of Planned Parenthood are considered education as defined under 501(c)3. Organizations exempt under 501(c)3 may present opinions with scientific or medical facts. Please explain in detail the activities at these prayer meetings. Also, please provide the percentage of time your organization spends on prayer groups as compared to the other activities of the organization. (From Ms Richards, IRS, Cincinnati, June 22, 2009, to Coalition for Life of Iowa, p. 3. P. 46 of the Thomas More exhibit]
Sally Wagenmaker replies:
Upon careful consideration of your oral request, the Board became concerned about whether its supporters’ constitutional free speech, freedom of association, and freedom of religion rights would be violated by such restrictions.
…I contacted you by telephone to reiterate the Coalition Board’s requests for clarification. You did not provide any guidance, however, as to either the definitions or the relevance of the IRS’ pending request. Instead, you expressed the legally erroneous view that the Coalition is not allowed per se to engage in “advocacy” as a section 501(c)3 organization. You also indicated that you would “check further” with your manager on this matter and be back in touch with me shortly.
Instead of a return phone call, I received your June 22, 2009 written request, seeking more information about the Coalition’s prayer activities, use of signs outside of Planned Parenthood, and how its activities are “educational” as that term is used for purposes of section 501(c)3….
The IRS’ requests come perilously close to violating the First Amendment constitutional rights of the Coalition’s supporters….
From Sally Wagenmaker to Ms Richards, IRS Cincinnati, July 2, 2009, pp. 4–5; page 50 of the Thomas More exhibit]
The 1023 Schedule A checklist contains these questions:
1a. Do you have a written creed, statement of faith, or summary of beliefs. If “Yes,” attach copies of relevant documents.
1b. Do you have a form of worship? If “Yes,” describe your form of worship?
2a. Do you have a formal code of doctrine and discipline? If “Yes,” describe your code of doctrine and discipline.
3. Describe the organization’s religious hierarchy or ecclesiastical government.
4a. Do you have regularly scheduled religious services? If “Yes,” describe the nature of the services and provide representative copies of relevant literature such as church bulletins.
4b. What is the average attendance at your regularly scheduled religious services?
Jonathan Seidl has more detail on the questions being asked of religious groups. He links to a story by Mark Hemmingway that describes Lois Lerner’s history of inappropriate religious questions while at the Federal Election Commission (FEC). Here is the testimony of attorney James Bopp on the ways the FEC was violating the First Amendment in 2003.
FEC attorneys continued their intrusion into religious activities by prying into what occurs at Coalition staff prayer meetings, and even who attends the prayer meetings held at the Coalition. This line of questioning was pursued several times. Deponents were also asked to explain what the positions of “intercessory prayer” and “prayer warrior” entailed, what churches speciﬁc people belonged, and the church and its location at which a deponent met Dr. Reed.
One of the most shocking and startling examples of this irrelevant and intrusive questioning by FEC attorneys into private political associations of citizens occurred during the administrative depositions of three pastors from South Carolina. Each pastor, only one of whom had only the slightest connection with the Coalition, was asked not only about their federal, state and local political activities, including party afﬁliations, but about political activities that, as one FEC attorney described as “personal,” and outside of the jurisdiction of the FECA [Federal Election Campaign Act]. They were also continually asked about the associations and activities of the members of their congregations, and even other pastors.
Bopp’s testimony includes a transcript of questioning between the FEC and Lt. Col. Oliver North to illustrate Bopp’s point. In that transcript, the FEC representative started prying into why the Lt. Col. thanked Pat Robertson for prayers in a letter. See it below (Q stands for the FEC rep, A denotes North’s response, and O is the objection raised by Christian Coalition attorneys), and note the questioner’s befuddlement at the objections raised to the line of questioning [emphasis added]:
He provides some of the transcript of an exchange (beginning on p. 18 of Bopp’s testimony):
Q: (reading from a letter from Oliver North to Pat Robertson) “‘Betsy and I thank you for your kind regards and prayers.’ The next paragraph is, ‘Please give our love to Dede and I hope to see you in the near future.’ Who is Dede?”
A: “That is Mrs. Robertson.”
Q: “What did you mean in paragraph 2, about thanking -you and your wife thanking Pat Robertson for kind regards?”
A: “Last time I checked in America, prayers were still legal. I am sure that Pat had said he was praying for my family and me in some correspondence or phone call.”
Q: “Would that be something that Pat Robertson was doing for you?”
A: “I hope a lot of people were praying for me, Holly.”
Q: “But you knew that Pat Robertson was?”
A: “Well, apparently at that time I was reﬂecting something that Pat had either, as I said, had told me or conveyed to me in some fashion, and it is my habit to thank people for things like that.”
Q: “During the time that you knew Pat Robertson, was it your impression that he had – he was praying for you?”
O: “I object. There is no allegation that praying creates a violation of the Federal Election Campaign Act and there is no such allegation in the complaint. This is completely irrelevant and intrusive on the religious beliefs of this witness.”
O: “It is a very strange line of questioning. You have got to be kidding, really. What are you thinking of, to ask questions like that? I mean, really. I have been to some strange depositions, but I don’t think I have ever had anybody inquire into somebody’s prayers. I think that is really just outrageous. And if you want to ask some questions regarding political activities, please do and then we can get over this very quickly. But if you want to ask about somebody’s religious activities, that is outrageous.”
Q: “I am allowed to make-’’
O: “We are allowed not to answer and if you think the Commission is going to permit you to go forward with a question about somebody’s prayers, I just don’t believe that. I just don’t for a moment believe that. I ﬁnd that the most outrageous line of questioning. I am going to instruct my witness not to answer.”
Q: “On what grounds?”
O: “We are not going to let you inquire about people’s religious beliefs or activities, period. If you want to ask about someone’s prayers-Jeez, I don’t know what we are thinking of. But the answer is, no, people are not going to respond to questions about people’s prayers, no.”
Q: “Will you take that, at the first break, take it up- we will do whatever we have to do.”
O: “You do whatever you think you have to do to get them to answer questions about what people are praying about.”
Q: “I did not ask Mr. North what people were praying about I am allowed to inquire about the relationship between-’’
O: “Absolutely, but you have asked the question repeatedly. If you move on to a question other than about prayer, be my guest.”
Q: “I have been asking you a series of questions about your relationship with Pat Robertson, the Christian Coalition. . . . It is relevant to this inquiry what relationship you had with Pat Robertson and I have asked you whether Pat Robertson had indicated to you that he was praying for you.”
O: “If that is a question, I will further object. It is an intrusion upon the religious beliefs and activities of Dr. Robertson. And how that could – how the Federal Government can be asking about an individual’s personal religious practices in the context of an alleged investigation under the Federal Election Campaign Act, I am just at a complete loss to see the
relevance or potential relevance, and I consider that to be also intrusive.”
Q: “Was Pat Robertson praying for you in 1991?”
O: “Same objection.”
A: “I hope so. I hope he still is.”