Why is political speech in churches back in the news?

During his speech at the recent Republican National Convention, Donald Trump said, “An amendment, pushed by Lyndon Johnson many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views.”

The new GOP platform also says the “federal government, specifically the IRS, is constitutionally prohibited from policing or censoring speech based on religious convictions or beliefs” and urges the repeal of the so-called “Johnson Amendment.”

What is the Johnson Amendment?

In 1954, Senator Lyndon Johnson was running for reelection in his home state of Texas and faced a primary challenge from a millionaire rancher-oilman. A non-profit conservative political group published material mending voting for Johnson’s challenger. To get back at this group, Johnson subsequently introduced an amendment to Section 501(c)(3) that would prohibit tax-exempt organizations from attempting to influence political campaigns. The present ban is codified in Section 501(c)(3) of the Internal Revenue Code.

What does the law say?

According to the Internal Revenue Service,

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.

Certain activities or expenditures may not be prohibited depending on the facts and circumstances. For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity if conducted in a non-partisan manner.

On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.

Was the Johnson Amendment intended to separate church and state?

No, in fact, many legal scholars claim that Johnson had no intention for it to apply to churches. The effect on religious organizations was merely the collateral effect since they held the same non-profit status as groups whose speech Johnson wanted to limit.

Is the ban constitutional?

As law professor Robert W. Tuttle notes, some legal groups would claim that the law violates both the First Amendment’s Free Exercise Clause, which prohibits the government from regulating religious organizations more strictly than their secular counterparts, and the Religious Freedom Restoration Act, a 1993 federal statute that prohibits the federal government from imposing a “substantial burden” on a religious organization unless the government demonstrates that it must impose that burden to achieve a pelling government interest.”

The ban may also violate First Amendment’s Free Speech Clause, which prohibits the government from regulating speech on the basis of its content, and the First Amendment’s Establishment Clause by requiring the IRS to scrutinize sermons or other religious messages, thus excessively entangling government and religion.

If challenged in the future the Supreme Court might rule the law is unconstitutional, but in previous related challenges lower courts have upheld the amendment’s constitutionality.

If it’s constitutional what can be done to restore the speech rights of churches?

In 2013 mission of the Evangelical Council for Financial Accountability (ECFA) has proposed a way to fix the Johnson Amendment without fully repealing the law.

The Commission mended amending the Johnson Amendment to allow:

Speech that would be no added cost or a very minimal cost to the organization (such as a sermon, not an expensive advertising campaign)If the speech of the organization would cost more than that minimal amount, then the Johnson Amendment would only prohibit speech that clearly identifies candidates and directly calls for those candidates’ election or defeat.

“This fix, if adopted, will relieve a great deal of pressure on churches and other non-profit organizations,” says Alliance Defending Freedom, a religious liberty advocacy group. “It will get the IRS out of the business of censoring what a pastor says from the pulpit and will go a long way to bringing clarity to the IRS’ enforcement of the Johnson Amendment.”

Should churches even be endorsing candidates from the pulpit?

Many Christians have a natural aversion to the politicization of the pulpit. But even those who think it might not be prudent recognize that danger in allowing the government to decide what can and cannot be said in churches.

Russell D. Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, has said, “While I don’t think a church normally should endorse candidates for office from the pulpit, that’s only because I believe the mission of the church ought to stand prophetically distant from political horsetrading.”

“That’s a matter of gospel prudence, though, not a matter of legal right and wrong,” said Moore. “A congregation should decide when to speak and what to say. Such decisions shouldn’t be dictated by bureaucrats at the IRS or anywhere else. The [Commission on Accountability and Policy for Religious Organization] is right that the chilling of the speech of churches is easily abused by politicians. That’s why I support the freedom of speech for churches and pastors, even when they say more or less than what I would say from the pulpit.”