The Freedom From Religion Foundation has sued the Internal Revenue Service in an effort to force the agency to crack down on churches.
Churches increasingly have spoken out on social issues, including those on the ballot, and some pastors endorsed candidates leading up to the election, even though the Johnson Amendment prohibits them from doing so.
"Well, I think this is just further evidence that groups like Freedom From Religion Foundation or Americans United for Separation of Church and State are trying to use the Johnson Amendment in the tax code as a tool of intimidation to silence and censor churches," contends Erik Stanley, senior counsel with the Alliance Defending Freedom.
The Freedom from Religion Foundation argues that churches and religious organizations have become more involved in political campaigns, "blatantly and deliberately flaunting the electioneering restrictions."
The lawsuit, filed in Wisconsin, cites several examples, including full-page ads that ran this fall in The New York Times and other newspapers by the Billy Graham Evangelistic Association that featured a photo of renowned evangelist Billy Graham urging Americans to vote along biblical principles. Graham met in October with Republican presidential challenger Mitt Romney and pledged to do "all I can" to help him.
Stanley points out that FFRF filed the lawsuit against the IRS in Wisconsin -- a politically liberal state.
"Well, the Freedom From Religion Foundation does like to file lawsuits in friendly forums, and so they may think that this court is going to be friendly or sympathetic to their pleas," Stanley asserts.
"But the fact of the matter is, this is really a nuisance lawsuit; it doesn't have any legal basis whatsoever," he continues. "The IRS cannot be forced to interpret the Johnson Amendment to apply it in a particular way that Freedom From Religion Foundation likes."
But the ADF attorney concludes that one thing is for certain: the Johnson Amendment is unconstitutional. And if the IRS files suit against a church, his organization, which has been encouraging pastors to challenge the measure (see earlier story), is prepared to go to court.
FFRF's lawsuit argues that the IRS is not enforcing the federal tax code, which prohibits tax-exempt religious organizations from electioneering. The suit says not enforcing it is a violation of equal protection rights because the same preferential treatment is not provided to other tax-exempt organizations such as the Freedom from Religion Foundation.
The lawsuit asks that the IRS initiate legal action against any churches or religious organizations that are believed to be violating the restrictions.
Associated Press contributed to this story