Sermons are not the state’s business

From the founding of our nation, through the dark days of the Civil War, to the Civil Rights Movement and the pro-life cause, pastors have preached to their congregations on the vital issues of the day. In a democracy, big issues are decided by voters in elections. Yet since 1954, pastors have been silenced from preaching on specific candidates and elections by the Johnson Amendment, a provision in the tax code that prohibits nonprofit organizations from participating in electoral advocacy. That constitutional wrong was righted this week when the Internal Revenue Service announced a new policy recognizing the First Amendment right of pastors to speak to their flock free of IRS oversight.

The Johnson Amendment is named for President Lyndon B. Johnson, whose family held powerful radio investments and who was irritated by criticism directed to him on some radio stations. The amendment was straightforward: 501(c)(3) tax-exempt organizations must be dedicated to tax-exempt charitable purposes, like education, scientific research, and social services for the poor. It makes sense to say that political advocacy for candidates doesn’t fit that general theme. The Internal Revenue Code has different categories for political groups, and Congress has made the choice not to allow tax deductibility for political donations, unlike religious or charitable donations.

However, because churches and other houses of worship are categorized under Section 501(c)(3), the practical impact of the Johnson Amendment meant that the Internal Revenue Service was responsible for policing the speech of churches. Basically, the policy was that pastors could not endorse candidates or talk about politics too much or their church could lose its tax status. For years, the good folks at the Alliance Defending Freedom pushed back against this policy with their Pulpit Freedom Initiative, arguing that the government had no right to tell pastors what they could say to their flock around election time.

Applying the Johnson Amendment to houses of worship offended several key constitutional principles. First, it violated the First Amendment’s Establishment Clause by inviting the IRS to monitor pastors’ sermons. Second, it violated the First Amendment’s Free Exercise Clause by penalizing pastors based on what they chose to preach within the four walls of their own church to their own flock. There was also an equal protection problem when the Johnson Amendment was used to bludgeon evangelical or Catholic voices into silence on pro-life or family issues while many African American churches were hosting Democratic candidates. Yet because it was the law and because pastors feared the IRS, many pastors have self-censored their sermons to avoid talking about candidates. And because of the expansive interpretation of the Johnson Amendment pushed by secularist legal advocates, many pastors avoided talking about any political or legislative topic for fear of breaking the law.

Thankfully, the IRS has entered into a legal agreement to settle a lawsuit brought by the National Religious Broadcasters that will end this overbroad application of the Johnson Amendment. The agreement says, “When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participate[s]’ nor ‘intervene[s]’ in a ‘political campaign,’ within the ordinary meaning of those words. ... Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services,” does not constitute campaign intervention under the tax code.

This strikes an appropriate balance that respects both the First Amendment and campaign finance principles. It protects churches when they communicate to their own congregants, like in a Sunday sermon. It does not give churches carte blanche to act like a SuperPAC and start running TV ads targeting the entire electorate while still claiming tax-exempt status as a church.

For decades, the Johnson Amendment has been a boogeyman used by secularists to intimidate and bully churches from talking about politics, even as it has existed primarily as a paper tiger, on the books but not enforced by the IRS. Yet both because of their respect for the law and their worry about a lawsuit, many pastors have shied away from talking about candidates and even about the application of gospel values to current issues. This new declaration of policy should end that climate of fear and give pastors their full First Amendment freedom to preach to their flocks free from IRS monitoring.