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Barry W. Lynn

Barry W. Lynn is the executive director of Americans United for Separation of Church and State, a tax-exempt organization dedicated to preserving church-state separation. He is an ordained minister in the United Church of Christ, an attorney, and author of Piety & Politics: The Right-Wing Assault on Religious Freedom.

Sarah Laskow and Josh Israel interviewed Lynn on March 12, 2008.

Start out with telling us your name and your positions.

I’m Barry Lynn, executive director of Americans United for Separation of Church and State, a 501(c)(3) organization in Washington, D.C.

The first thing we want to know, just for some background, is who you are and how your career led you to Americans United.

I’m both a United Church of Christ minister and an attorney. In many ways, being here, dealing with the separation of church and state, trying to keep a decent distance between institutions of government and those of religion, is a natural fit for me. I do understand the limits and the strengths of a constitutional system that we have but also think that Americans have to be very careful that they respect the spirit of diversity in the American religious scene. We’ve got 2,000 different religions in this country, 20 million free-thinkers, atheists, non-believers. We all pretty much have to make it together if the country is going to continue the progress that she’s made so far.

So this is a natural fit for you.

It feels very natural. I have no problems with being a believer and supporting very strongly the idea that we need a separation between government institutions and those of religion. Ultimately, I do believe it strengthens both to have that decent distance kept between government and religion.

Tell us a little bit more about the organization and how you work toward that mission that you just described.

Americans United was founded 60 years ago by journalists and by leaders of the American religious community out of a fear, at that time, that in particular the power of the Roman Catholic Church was becoming so great that it was able to censor books, keep things from even being brought into the country, films and books, and that it was actually working to take over public education. There were so-called “captive schools” where the archdiocese would come to a public school district and say, “We know you’re having some financial trouble so we’d like to send the teaching nuns over to the public schools.” Frequently we’d find — well, I didn’t find it because I was just a child then, just been born — my predecessors would find that those religious figures were teaching religion along with reading, writing, and arithmetic. This disturbed Jewish and Protestant Americans.

In 1962, there was a major change in Catholic theology. No longer did the church officially believe it had to be in a governing role in every country. It began to respect the separation of church and state as an idea. Now, ironically, 60 years after our founding, we find that it is primarily Evangelical/Protestant churches that seem to be blurring the line between what is and isn’t appropriate when it connects religion with government.

How did the organization get into this particular issue that we’re interested in, church politicking? What do you do in terms of that issue?

About 17 years ago, when I had just started here at Americans United, I was spending about half of my time here and moving from New England. One day over coffee my wife happened to see a copy of USA Today, on the back of which was an ad that said, “Christian Beware.” It was an ad taken out by a very small church in Upstate New York. Bill Clinton was running for his first term. “Don’t vote for Bill Clinton because Bill Clinton is a sinner,” and then it had little Bible verses to prove that he was based on his beliefs. Then it said, “If you vote for a sinner, you’ll be a sinner, too.” There were a couple Bible texts to prove that. She handed that to me and said, “You interested in this?” I just about spilled the coffee. Of course I said, “We have to do something.”

From that moment, we set up something called Project Fair Play. We complained to the Internal Revenue Service about the conduct of this small church, which happened, as it turned out, to be the church that Randall Terry, the founder of the anti-choice group Operation Rescue was a member of. We insisted that they be investigated. It turned out that that was the first church in history to lose its tax exemption solely on the basis of its electoral politicking. It was a small church. It went out business and then reformed, as it had the right to do, with a different name. The message was clear, that this kind of over-partisan politicking had no place within the confines of the tax code.

We were criticized, of course. People said we were just doing this because we didn’t like the politics of the church. That was not true. We didn’t like what they were doing. It wasn’t what they were saying but the fact that the church was actually endorsing a candidate. If it had simply said: “Some candidates are pro-choice. We don’t think people should vote for them,” and didn’t mention names or have anybody’s picture, we would not have complained about it.

The organization, even earlier than that, had complained when the Reverend Jesse Jackson was running for president about one thing that he was doing. He wanted to have a Sunday collection, a kind of second collection in many African-American churches specifically for his campaign. That was wrong. My predecessor complained about that in a kind of open letter to Reverend Jackson. He decided not to do that and he did not do the fundraising in churches. The actual start of what we call Project Fair Play was with that church, the so-called Church at Pierce Creek, up in Upstate New York.

We were on a number of television shows and he said he didn’t care what the IRS thought or what I thought. He was going to do whatever God told him to do, which apparently was to take out a $44,000 ad in USA Today. That was taken all the way to the D.C. Circuit Court of Appeals. No judge out of the three judges there or the trial judge thought that they had any legal leg to stand on. You can’t endorse candidates. No non-profit, religious or secular, can do that. There was no special exemption for churches that wanted to communicate their views. The panel even included conservative Judge Buckley on the D.C. Circuit. Nobody was buying the argument. Their lawyers, from their perspective, wisely didn’t challenge this further at the United States Supreme Court.

How does the project work now? People like your wife send in observations and then you follow up on those?

Yes, I think my wife is too shocked to show them to me over coffee. People often, including people who are actually members of the church, call us to complain about it. They will start a conversation and say, “I don’t even agree with what you people do much of the time, but —” the but includes a comment about what their pastor did to endorse a candidate or keep some other candidate from showing up at the church or violating the tax rules in some other way.

Contrary to the claims of our critics, we don’t send spies into churches. We don’t have a list of people who get up on a Saturday or a Sunday and go to church in order to report the pastor. Most of this is on the public record, sometimes from newspaper or video accounts that people will send us. Then we do some level of investigation to make sure that this warrants filing a complaint. As it turns out, at this point, we have filed, over the years, about half of our complaints about churches that endorse Democrats or appeared to, and half of those endorsing Republicans.

In the time that you’ve been doing this, does it seem like the problem has been getting better or worse?

In many ways, the problem is just getting different. It used to be that people would throw out these highly-biased voter guides where you literally, in the case of the Christian Coalition Voter Guides, they always made the Republican look like a sainthood candidate and the Democrat look like somebody whose image ought to be in the House of Horrors Wax Museum in Wildwood, New Jersey. It was unmistakable who you were supposed to vote for. These were distributed by the hundreds of thousands right before elections, usually the Sunday before a Tuesday election.

Most churches, now, are very reticent to do that. They no longer feel that’s appropriate. What we have found is that people are trying to find cleverer ways to achieve the same goals. They might have videos playing or slides being shown and say things like, “Some candidates want to fight terrorists,” and then they might have a picture — this is a real case from Arkansas — a picture of President Bush, an official White House photograph. Then they say, “Other candidates probably think we should sue the terrorists.” Then there was a rather unflattering picture of John Kerry. Although, to our knowledge, that did not lead to any penalties being imposed on the church. Now one can impose not just revoking the tax exemption, but what are called intermediate sanctions: fines, signing statements where the pastor says, “I did the wrong thing; I won’t do it again.”

They find ways that are a little cleverer. Although, I have to say, in this election cycle, we did report both a group called WallBuilders in Texas and the American Family Association in Tupelo, Mississippi, for producing voter guides that unmistakingly led to the conclusion you should vote for now-former presidential candidate Mike Huckabee, the former governor of Arkansas.

There also are sometimes very enthusiastic pastors who will have a candidate in the sanctuary. This is another case we reported this year. A Nevada pastor had Senator [Barack] Obama speak. He announced that he wished the caucuses in Nevada were that day — it was the Sunday before the Tuesday of the caucus — because he wanted to vote for Obama right now. He said, “I’m convinced that this man must be elected.” Well, this is way over the line. You cannot use the pulpit to make these kinds of candidate endorsements.

When you talk about these sorts of pamphlets or voter guides that people put out, does the money for those come from within the church budget or is there other money flowing into the churches specifically for that purpose?

In general, the voter guides are produced by outside people, including (c)(4) organizations, a slightly different tax creature, that may be allowed to distribute it themselves but can’t use a (c)(3), a tax exempt entity like a church, to distribute it. They would just dump these things, literally, off at the church and say, “This is some helpful information from the Christian Coalition.” Some churches would, in a sense, be duped into thinking they were doing something that was already approved when, in fact, it was not.

Are there any particular culprits in that sort of thing?

We complained in the 2004 election cycle about voter guides that were being produced by associated organizations to Focus on the Family. I want to be careful about describing them. They were not technically affiliates of the big Focus on the Family headed by James Dobson out in Colorado Springs, but they were state organizations that had a relationship with it. They seemed to only want to print voter guides that were in very hotly contested states with hotly contested gubernatorial or, in particular, Senate races. Again, we thought these were obviously biased in favor of, again, in every case, Republican candidates.

I talked to Dr. Dobson about it. We had a personal conversation in person about it. He attempted to persuade me that these were neutral. I thought that very use of language, when you use language that is highly loaded about loaded, hot issues like reproductive choice, you pretty much get the idea whose side the publisher is on.

So you get these complaints and you evaluate them and then you hand them over to the IRS. What happens then? It sounded like you were saying that for some of them you don’t really know the outcome.

Under the quite legitimate privacy restrictions that the IRS has, because we are the complainant doesn’t give us any special right to find out what happens to our complaints. We generally find out only when the pastor or other leadership of the church actually gets upset about it, issues some kind of press release saying they’re innocent, or, in some cases, admitting that we were right and indicating that they have in some way been penalized.

Former Congressman Floyd Flake of New York was a man who said in the circumstance that led to our complaint, “I don’t endorse people from behind this pulpit because of the separation of church and state, but —” then he went on in the New York primary that featured Bill Bradley of New Jersey and Al Gore to endorse Al Gore. He was visited by the IRS. He talked to The Wall Street Journal and admitted that he had signed documents that said he had done the wrong thing, he wouldn’t do it again. To our knowledge, he has not. He was not very happy, but we’ve come to a meeting of minds and we can have friendly conversations again.

It does upset these churches. Whether they do this because they didn’t pay enough attention to the rules or because they just deliberately want to violate the rules, it’s still a bad thing to happen. It’s a good thing that there are not-for-profit organizations, I think. I think it’s a good thing that they are barred from partisan political activity. I don’t want to bar them from talking about issues, even if I don’t like where they come down on the issues. What I don’t want them to do is to cross that line. It doesn’t take a rocket scientist to figure out where the line is in about 98 percent of the cases. Are there still gray areas? Yes. But in general, if you know that you’re trying to help a candidate by endorsing him or her, if you think that a piece of paper that you’re distributing will lead somebody to vote for your favorite candidate, you’ve crossed the line. You know it and you have no business doing it.

Can you tell us about any particular complaints that your organization has filed this cycle?

The one that’s probably gotten the most attention because of its bizarre intermediate outcome is a church in southern California, a Baptist church, headed by a pastor by the name of Wiley Drake. Mr. Drake did what I think was clearly over the line, endorsing Mike Huckabee, both on church stationery and also on his church-based radio program he does it every day. Although he claimed it was a personal endorsement, it sure looked and sounded like a duck to me.

Mr. Drake called and left a voicemail message for me and then almost instantaneously sent out a press release announcing that he was urging his followers to pray for the death of two people on our communications staff and myself, specifically through the use of imprecatory prayers. Many people don’t know what they are. In other places, they’re just called curses. You curse that someone dies. In my case, he sent out sample curses, included with the psalms — may his wife be a widow, may his children be fatherless, may they have to scrounge forever for food in dark places — very unseemly stuff.

He was getting some attention paid to that in the newspapers as he did this because many people did find it somewhat peculiar for a Baptist minister to try to invoke death curses. Then his lawyers told him to be quiet and he has kind of been quiet about this. It did lead the Los Angeles Times to do an entire article on what imprecatory prayers were, including asking the Southern Baptist Convention if they had a policy in favor of them. Apparently they don’t, but they had a look into it.

This is the kind of reaction you get from people who, rightly or wrongly, feel that somehow they have a right no other tax exempt group has, a right to go in and say, “We’re endorsing candidate ‘X.’ We want to keep our tax exemption and we have an absolute right to do it.” They don’t want to play by the rules. We called this Project Fair Play so that everybody would be on an equal footing. Everybody would understand that they all have the same restraints and the same opportunities.

But no one else who you have complained against has started calling for your death yet?

At least not in a very public way. They might read something in the newspaper and, like me, spill their coffee and get mad at me. No, this is the most egregious example. Obviously the American Family Association, where we’ve also complained, sent out press releases denouncing what we’re doing, and always claiming that we’ve got some partisan motive. That’s the thing that really would be wrong if we did; we don’t. The evidence is, as I mentioned earlier, half of the complaints are against institutions that are supporting Democratic candidates.

Every once in a while we get, for example, the United Church of Christ. I am a pastor in the United Church of Christ. The United Church of Christ was reported to the IRS for allowing Barack Obama to speak at their summer convention. Obviously, when I heard he was speaking, when he became a presidential candidate, I did look into the issue of what they were doing. He was supposed to do, at least, what the IRS calls a non-candidate appearance by a candidate. In other words, you can be a candidate as long as you’re not introduced as a candidate.

Unfortunately, Senator Obama did mention his own candidacy twice during the course of his speech which, my understanding was, he said he wouldn’t do. Maybe he just got carried away, whatever. It did put the church now into this embarrassing position and expensive position of having to answer questions and defend itself. We looked at further evidence sent by some of its critics. We, again, did not see where the denomination had done anything improper. Once the word is out of the mouth of someone, it’s a little late to rewind history and start the event over.

So we looked at it. We looked very carefully, as did some conservative groups. Some of the appearances that Bill Clinton made on behalf of John Kerry in the last election [at] major churches, we, along with conservative groups like the Catholic League, viewed tapes and said he didn’t do anything wrong in those circumstances. Just the fact that someone appears in a church isn’t a violation. It’s what happens and particularly what happens as that individual is described or introduced. A literature table set up in the church? Do people put leaflets for that candidate in the church parking lot under windshield wipers? Those are the kinds of facts you have to look at to determine if there’s been a violation or not.

You talked before about Jesse Jackson and Mike Huckabee. It seems like there have been a lot of religious leaders running for president in the past decade or so. Are there particular problems associated with that? Do you get that at all?

Actually, it took until the 1970s for the Supreme Court to strike down statutes that prohibited ministers in some states, like Tennessee, from running for public office. We’ve always supported the idea that that should not bar you from running. Of course, the only question really is the question Jack Kennedy asked in 1960, or was asked to answer by Protestants with whom he was speaking in a very famous speech in Texas. He said if his conscience ever conflicted with the national interest, he would literally resign from the presidency. He said, “I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president, should he be a Catholic, how to act.” No Protestant minister would tell his congregation for whom to vote. That’s a staggering statement in comparison to the wishy-washy things we’ve sometimes heard since then. It was clear that he expected and he recognized that anyone, clergy or laity, who was running for office, had to separate his or her constitutional duties from matters of private belief.

It seems like that would be hard as a candidate when you have this vast political and financial resource at your fingertips to just let it go by itself. I was reading a little bit about the Southern Baptist Convention and Huckabee’s relation to it. It seemed like it was partially financial. Things associated with them have published his books.

So many of these issues are very fact-driven, as much of the law is in requiring [to] draw lines. People want the law to draw lines. We know that we do and we have to in this area also. When were things published? Before somebody was a candidate or afterwards? When were invitations issued? There’s also a sense that these large institutions can make a big difference in races if they, in a sense, get away with even a single erroneous endorsement.

There’s a tremendous clout from these megachurches, for example, churches that have thousands of members. If they’re involved in a congressional district race and they allow candidate ‘A’ to speak and then say to candidate ‘B,’ “We’re not letting you speak,” it’s a powerful message for thousands of people on the very cusp of the election. The IRS allows you to invite candidates as candidates, as long as you invite all the candidates as candidates. They don’t all have to show up, but at least you have to give them an opportunity to appear. Frankly, sometimes that happens, sometimes it doesn’t. When it doesn’t and when it’s a clear and deliberate decision to exclude one and introduce the other, that person who gets the introduction is a person that gets a big advantage in a big institution.

We were talking about that before we came about megachurches. Something I was also wondering was about this organization. It’s a 501(c)(3) but you deal with elections and religion. Is it justifiable in (c)(3) or do you have a (c)(4) that deals with parts of it? How do you navigate it in this context?

We are just a 501(c)(3). I’ve resisted forming a PAC or a (c)(4) or anything else because we do not engage in any partisan activity. We don’t even do voter guides ourselves. If you called Americans United for Separation of Church and State and you do a voter guide on the issues our members care about, you’re obviously signaling who’s better on the issue. It doesn’t say this is the only issue you should vote on, but it could be read that way. We don’t do that. We want to avoid even the appearance of any kind of partisanship.

We talk about issues, as we’re entitled to do. We file the lobbying reports we’re required to do. We’ve elected to expend only a certain amount of money on any kind of lobbying activity, as we’re entitled to do. We just like the churches and other religious bodies and charities to do the same thing. If they’re a (c)(3), act that way. Don’t get into electoral politics. Don’t wink at the candidates, hope they’ll do some favor for you and then you try to do some favor for them.

In some ways, the best thing that that tax law provision against politicking does is means there is a universe of organizations that don’t have candidates coming to them promising them anything or asking for their direct support. I think that’s a good thing. I think we should have charities that actually have educational purposes, issue focus, and don’t get into partisanship.

One other thing we’ve been asking people who are in the independent organization world is, without revealing any sort of secrets of the trade, how do you deal with fundraising for your organization? It’s such a tough field to navigate sometimes.

Well, do you have $10 you could give me? No, we’re very aboveboard about that. We have members that give us funds. We have some family foundations and some major foundations that give us funds. We do not work with political lists. We don’t work with political organizations to raise money. It’s kind of you see what we get on a basis of what comes in. Those envelopes to the post office are to us.

We do, I would call it intensive fundraising. We do send out action items for people every month. Of course, we do remind them that to do this right, we might be able to use another contribution. We have a group of high-dollar donors that try to do $1,000 or more a year, some cases much, much more than that. This is the sole basis of our activities. We do publish a magazine. People who are members get the magazine 11 times a year. We do a daily radio program that they can listen to in some communities or wherever you are on the Internet. We have lobbyists. We have a legal department that litigates. We have a field department for approximately 65 chapters around the country. We kind of want to meet the needs of people who care about these issues wherever they are and in whatever media they want to learn about it.

The Supreme Court, as it’s been changing the past couple of years with the appointments, Chief Justice Roberts and Chief Justice Alito and the administration have obviously a somewhat different take on where the line of separation should be than some previous courts, some previous administrations. Would you say getting the IRS and getting the courts to referee in the political arena where it comes to religious involvement in presidential elections is getting more difficult?

I think the Internal Revenue Service issues that we’ve been talking about eventually will get to the United States Supreme Court. I don’t think there’s a feeling that anybody is in a big hurry to do that because it is such a complex and controversial area. The courts have become more conservative in what I’d consider a bad sense. They don’t have as much sense for individual rights as they do for the conservation of government power. It’s a major issue and it’s clear that the so-called Religious Right has four and a half votes on the Supreme Court today. The question is will they get that extra vote?

I don’t think any changes in the court will occur between now and the election. I think people who follow the election will see that more and more self-described conservatives, even if they’re unhappy with both candidates of major parties, will probably drift to the party that they feel is more likely than the other to appoint justices like Clarence Thomas, Judge Alito, and some of the other Bush and Reagan appointees.