The Internal Revenue Service says it will relax its long-standing ban on churches engaging in political campaign activity. Churches, of course, must decide whether to do so, but this overdue decision respects their First Amendment rights.
Under the Internal Revenue Code, churches—like other organizations that serve charitable, religious, educational, scientific, and similar purposes—are eligible for nonprofit status. These groups are free from various taxes but subject to other restrictions; for example, they can’t spend “substantial” resources on lobbying.
In 1954, Congress added a new restriction—dubbed the Johnson Amendment after its initial sponsor, then-Sen. Lyndon B. Johnson, D-Texas, that says tax-exempt organizations may not “participate in, or intervene in … any political campaign.” The IRS has long interpreted this as an absolute prohibition that forbids any written or verbal communication within a house of worship, such as sermons or distribution of literature, that supports or opposes political candidates.
This interpretation places churches in a bind. The Supreme Court has held for decades that, in the words of a 2022 decision, religious speech is “doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment.”
But a 2013 report by the Commission on Accountability and Policy for Religious Organizations observed that the Johnson Amendment is “the only law that allows the Internal Revenue Service to evaluate the content of a sermon delivered by a member of the clergy … the only law that could cause a church to lose its federal tax exemption based on the words spoken by its leaders in a worship service.” The Johnson Amendment, therefore, makes abandoning First Amendment rights the price of tax-exempt status.
This conflicts with how America’s Founders designed the relationship between individual rights and government. In James Madison’s words, the right to exercise religion is so important that it takes precedence over “the demands of a civil society.” The Supreme Court recognized this when it held in 1943 that freedom of speech and religion “are in a preferred position.”
As a result, courts have given religious organizations wide latitude to decide how to practice their faith. The Supreme Court, for example, recognizes a “ministerial exception” to certain antidiscrimination laws so churches may decide who will advance their religious mission. Just last month, in Catholic Charities Bureau v. Wisconsin, the Supreme Court said that it’s not up to a government agency to judge whether a religious organization’s activities sufficiently demonstrate a “religious purpose.”
But the Johnson Amendment restricts this latitude. Consider two churches that are similar in composition, organization, ministry activities, and even liturgy. The only real difference is that the pastor of one church includes in his sermons instruction on how religious principles should impact political participation, including voting, while the other does not.
Under the Johnson Amendment, the first pastor’s application of Scripture could potentially cause his church to lose its tax-exempt status, suffer a huge financial blow, and possibly close its doors based only on how the pastor interprets and applies Scripture.
Two events have finally begun lifting this threat to First Amendment rights. First, President Donald Trump issued Executive Order 13798 in May 2017. It provides that speech by religious leaders in houses of worship and religious organizations about “political issues from a religious perspective” including supporting or opposing political candidates, does not count as “participation or intervention in a political campaign” under the Johnson Amendment.
Second, last August two churches and two religious associations sued the IRS, challenging the constitutionality of the Johnson Amendment. They argued not only that it violates their First Amendment rights, but also that it treats some tax-exempt organizations differently than others. Many newspapers, for example, are owned by nonprofit organizations but are allowed to publicly endorse or oppose political candidates without penalty.
The IRS relented, agreeing to change the way it will enforce the Johnson Amendment against churches. Under the agreement, “the Johnson Amendment does not reach speech by a house of worship to its congregation, in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.”
Consistent with Trump’s 2017 executive order, the IRS will take this new enforcement approach not only toward the parties that sued, but with all churches. It has apparently concluded that its absolute prohibition on such political speech is no longer justifiable.
Reaction has been predictable. The New York Times described the agreement as “carving out an exemption in a decades-old ban on political activity by tax-exempt nonprofits.” This position echoes their warning, at the time of Trump’s 2017 executive order, that changing how the Johnson Amendment is enforced would “fundamentally alter a major aspect of the church-state divide.”
Liberals, of course, want that “divide” to be a chasm, hoping to keep the exercise of religion quiet, with as little influence on society and culture as possible. No wonder then, that radical church-state separationists have already blamed the Trump administration for “crudely reinterpreting” the Johnson Amendment and “upend[ing] a core tenet of church-state separation.”
Government suppression of disfavored exercises of religion may further a particular agenda, but it is incompatible with the Founders’ prescription that the purpose of government is to secure inalienable rights. These include the first individual rights listed in the First Amendment: the free exercise of religion and the freedom of speech.
Churches are now free to decide whether and how to speak about electoral politics viewed through the lens of religious faith. This is how it should have been all along.
