.- The San Diego-based apologetics group Catholic Answers has asked the U.S. Supreme Court to allow it to sue the Internal Revenue Service for violating its First Amendment rights for âimproperly taxing its constitutionally protected political speech.â
However, the lawsuitâs success is âhighly unlikely,â said Lloyd Hitoshi Mayer, a University of Notre Dame Law School professor.
âExcept under relatively rare circumstances, none of which exist here, successfully obtaining Supreme Court review is unlikely because the Court denies most requests for review,â Mayer told CNA on Oct. 24. âIt is even more unlikely in this case because both the trial court and the appellate court - without dissent - found that the case was moot.â
Even if the Supreme Court agreed to hear the case, he added, it would likely confirm the finding of the lower court and affirm the dismissal of the lawsuit without considering its constitutional claim.
In May 2008 the IRS ruled that two messages from Catholic Answers president Karl Keating illegally opposed the election of a specific candidate in the 2004 presidential election.
Keatingâs two E-letters questioned whether Democratic candidate John Kerry, a Catholic, should present himself for Holy Communion because of his support for abortion. The organization also created a voterâs guide which the IRS investigated before ruling that it did not violate tax exemption rules.
The IRS ordered the organization to pay excise taxes for 2004 and 2005. However, the IRS in 2009 decided to lift the excise taxes and pay interest to Catholic Answers because the alleged political activity was ânot willful and flagrant,â the California Catholic Daily reports.
Catholic Answers said that the complaint was initiated by Frances Kissling, then-head of the abortion supporting group Catholics for Choice, which the U.S. bishops have denounced for distorting Catholic teaching.
In its lawsuit, filed in 2009, Catholic Answers charged that the IRSâ process of punishment and appeal poses a threat to free speech.
James Bopp, Jr. of the James Madison Center for Free Speech, Catholic Answersâ legal representative, said the organization asked for court review because âwithout a change in the IRSâs position on its speech, it couldnât risk mak(ing) comments like those on the web post again to avoid another investigation and tax penalty.â
Both courts ruled that because Catholic Answers got its money back, the issue was resolved and the courts could do nothing further.
âThis allows the IRS to harass and penalize nonprofits who discuss public officials who are also running for office while leaving those nonprofits without any recourse: the IRS can simply return the money at the last minute and never be sued for taxing protected speech that shouldnât be taxed in the first place,â Bopp said.
The IRS actions will deter non-profits from speaking about individuals who are political candidates in any context for fear of an investigation, he added.
âNothing prevents the IRS from doing this again. And these groups now have no judicial remedy,â he said.
Mayer said the lawsuit raises the important issue of whether the governmentâs rule is unconstitutionally vague.
âCatholic Answers is correct that the test is vulnerable to criticism that it unconstitutionally chills speech by charities that are tax-exempt under Internal Revenue Code section 501(c)(3) because it is difficult for them to know when the IRS will find that their speech violates this prohibition.â
It is âpossible but not certainâ the lawsuitâs constitutional claim would succeed, if a court would consider it.
Catholic organizations, including the U.S. Conference of Catholic Bishops and Catholic dioceses, are exempt from federal income tax as 501(c)(3) organizations. They are eligible to receive tax deductible contributions, but the tax code requires them not to support or oppose candidates for elected office.
âThis prohibition applies to all organizations that claim these tax benefits, both religious and secular,â Mayer explained. âThis prohibition prevents Catholic organizations from using tax deductible contributions for speech or other actions supporting or opposing candidates.â
Catholic organizations may create an affiliated organization that is exempt under 501(c)(4) rules, though these organizations are ineligible for tax deductible contributions. These organizations may support or oppose candidates, as long as doing so is not its primary activity.
Catholic Answers chose this path, he noted, by transferring responsibilities for its voterâs guide to its affiliate Catholic Answers Action.
âThis option is not available for some types of speech, however, most notably speaking about candidates from the pulpit during a regular worship service,â Mayer explained.