The opinion of the court was delivered by: Paul L. Friedman, District Judge.
This case is about the decision of the Internal Revenue Service
to revoke the status of plaintiff Branch Ministries as an
organization exempt from taxation pursuant to 26 U.S.C. § 501
(c)(3). Before any discovery was conducted, the government filed
a motion to dismiss or for summary judgment. Plaintiffs sought
discovery on their claim that they were victims of selective
prosecution, and the Court granted plaintiffs' motion to compel.
The case now is before the Court on the renewed motion of the
government for summary judgment and on plaintiffs' cross-motion
for summary judgment. Upon consideration of the cross-motions,
the Court concludes that the government has established that
there are no material facts in dispute and that it is entitled to
judgment as a matter of law.
The genesis of this case occurred two presidential elections
ago. Governor William Jefferson Clinton of Arkansas was running
as the nominee of the Democratic party for President of the
United States. On October 30, 1992, four days before the
election, plaintiff Branch Ministries, Inc. ("BMI"), doing
business as the Church at Pierce Creek, expressed its concern
about the moral character of Governor Clinton in a full page
advertisement in the Washington Times and in USA Today. The
advertisement proclaimed "Christian Beware. Do not put the
economy ahead of the Ten Commandments." It asserted that Governor
Clinton supported abortion on demand, homosexuality and the
distribution of condoms to teenagers in public schools. The
advertisement cited various Biblical passages and stated that
"Bill Clinton is promoting policies that are in rebellion to
God's laws." It concluded with the question: "How then can we
vote for Bill Clinton?" At the bottom of the advertisement, in
fine print, was the following notice: "This advertisement was
co-sponsored by The Church at Pierce Creek, Daniel J. Little, Senior
Pastor, and by churches and concerned Christians nationwide.
Tax-deductible donations for this advertisement gladly accepted. Make
donations to: The Church at Pierce Creek," and provided a mailing
address. Defs' Motion for Summ. J., Decl. of Peter Lorenzetti,
At the time the advertisement was published, BMI was an
organization exempt from taxation pursuant to 26 U.S.C. § 501
(c)(3). On October 31, 1992, the New York Times published an
article entitled "Religious Right Intensifies Campaign for Bush."
Pl's Mot'n for Summ. J., Exh. 1. The article discussed the role
of the religious right in the 1992 presidential campaign and
mentioned the advertisement described above, but it did not
mention Branch Ministries or the Church at Pierce Creek by name.
The article also stated, erroneously as it turned out, that
"[t]he advertisement is to run in 157 more papers this weekend."
Id. On December 1, 1992, the New York Times published an op-ed
piece by Anthony Lewis entitled "Tax-Exempt Politics?"Id. Lewis
discussed the "use of tax-exempt money for politics," and, as a
case in point, he focused on the advertisement run in USA Today
by the Church at Pierce Creek. Lewis opined that "[t]he sponsors
[of the advertisement] almost certainly violated the Internal
On December 23, 1992, the Church sent a response to the request
for information. Defs' Motion for Summ. J., Decl. of Peter
Lorenzetti, Exh. G. The Church took the position that it had not
engaged in any political activity; the advertisement printed in
USA Today and the Washington Times constituted a "warning to
members of the Body of Christ," and the warning "did not
constitute participation in a political campaign."Id. The Church
refused to respond to most of the requests made by the IRS,
including the request for the identities of persons who had
contributed money in response to the USA Today and Washington
By letters of February 11, 1993 and August 11, 1993, the IRS
informed the Church that it was beginning a Church Tax.
Examination, and it again requested certain documents from the
Church. Defs' Motion for Summ. J., Decl. of Peter Lorenzetti,
Exhs. H, J. At one point, the IRS drafted a summons to require
the Church to submit the requested information, but the summons
was never issued. Finally, on January 19, 1995, the IRS issued
a letter stating that BMI's status as a Section 501(c)(3)
tax-exempt organization was revoked, retroactive to January 1, 1992.
Id., Exh. K.*fn2 Three months after the revocation letter was
issued, plaintiffs filed this action asserting that the
revocation of its status as a Section 501(c)(3) organization
violates the Internal Revenue Code, the Religious Freedom
Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, the First
Amendment and the church's equal protection rights under the
In June 1995, the government filed a motion to dismiss or for
summary judgment. In response, plaintiffs filed a motion to
compel, arguing that they were entitled to discovery on their
selective prosecution claim. While the motion was pending, the
Supreme Court decided United States v. Armstrong, 517 U.S. 456,
116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), in which it clarified
that a defendant in a criminal case must make a colorable showing
of both discriminatory intent and discriminatory effect in order
to obtain discovery on a selective prosecution claim.
Subsequently, this Court granted plaintiffs' motion to compel and
ordered the government to provide fairly broad discovery. The
Court noted that "plaintiffs' evidence is by no means strong at
this stage of the litigation," but it concluded that plaintiffs
had "produced sufficient evidence to raise a colorable claim of
intentional discrimination." See Branch Ministries v. Richardson,
970 F. Supp. 11, 17 (D.D.C. 1997). It therefore ordered discovery
to the extent permitted by the Internal Revenue Code.Id.
Plaintiffs seek to have the revocation decision of the IRS
reversed on a variety of statutory and constitutional grounds.
The basic premise of their statutory claims is that once a church
applies for and is deemed a Section 501(c)(3) organization, the
IRS lacks authority to revoke that status unless it concludes
that the church is not a bona fide church. Plaintiffs also
contend that the IRS selectively prosecuted the Church on the
basis of its political and/or religious views in violation of the
Equal Protection Clause and that the revocation violated the
First Amendment and the Religious Freedom Restoration Act.
Churches occupy a unique position in the tax code. A church or
religious organization that so chooses may seek an advance ruling
from the IRS that it is exempt from taxation pursuant to
26 U.S.C. § 501(c)(3).*fn3 A church or religious organization
seeking tax-exempt status under Section 501(c)(3) is required to
provide the IRS with fairly detailed information with respect to
its mission, goals, and organizational structure so that the IRS
can determine whether the organization in fact is a bona fide
religious organization eligible for tax-exempt status. See
26 C.F.R. § 1.501(a)-1(b)(1)(iii). In addition, the organization
is required to make certain representations, including a
representation that ...