Legal Docket: Suing the IRS

NICK EICHER, HOST: It’s Monday, the 16th of September .

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

LINDSAY MAST, HOST: And I’m Lindsay Mast.

Time now for Legal Docket and a case challenging a federal law limiting the speech of religious organizations.

That law calls for penalties on churches and religious non-profits that involve themselves in partisan political activity.

EICHER: But some say that rule is unconstitutional and are suing the federal government over it.

Here now with this week’s Legal Docket is WORLD’s Steve West:

GARY HAMRICK : We need to wake up Christian, this is a battle. This is a war.

STEVE WEST: During a 2020 sermon, Cornerstone Chapel Pastor Gary Hamrick preached to his Leesburg, Virginia congregation about election, the political kind.

HAMRICK: Donald Trump is not our Savior. Joe Biden is not our Savior. Jesus Christ is our Savior, and because, and because he is my Savior, as for me and my house, I cannot, I will not vote for a candidate whose party platform advocates the murder of unborn babies, embraces same sex marriage, encourages transgender behavior and ignores God and His Word in our culture. Listen, if you in good conscience cannot vote for Donald Trump, then don't. But I don't know how in good conscience a Christian can vote for an agenda that is evil.

Soon after that, the church got a visit from the federal government.

FARRIS: the IRS came . . . after our church and levied a fine.

Michael Farris is a member of Cornerstone Chapel. He’s also an attorney. He says the Internal Revenue Service required the church to pay a tax penalty for violating federal law.

Seventy years ago, Congress passed an amendment to the federal tax code that barred churches and religious nonprofits from engaging in partisan political activity.

Labeled the Johnson Amendment—after then-Senator Lyndon Johnson—the law prevents churches and religious nonprofits from supporting or endorsing political candidates. If they do, they pay a price: They risk losing their tax-exempt status.

But Farris and others say the government has enforced the law selectively…since the beginning in fact.

FARRIS: Within a month for sure, after Lyndon Johnson got the Johnson Amendment passed, his campaign violated it. He got a church in Texas, a pastor in Texas to send out a letter to thousands and thousands of Protestant pastors saying, there's a Catholic guy running against me in the primary. And you know, we good Christians, we’ve got to stand together. And we got a good Christian man, LBJ, running for president, so let’s get this done.

So it’s not new that some churches and religious organizations today encourage political action without government retribution.

REV. KEVIN JOHNSON: Don’t you know, beloved, that since 2021, Republican-controlled state houses have passed a swarm of laws to restrict voting rights.

That’s Reverend Kevin Johnson, preaching at Abyssinian Baptist Church in New York City earlier this year.

JOHNSON: We’ve got to make sure the people get out and vote this November like never before. This is not the time. And the brothers who are at Morehouse this morning, you can’t turn your back on Biden because what are you turning your back to. Beloved, this is not the time.

In a lawsuit filed against the IRS last month, Farris and a group of plaintiffs cited Kevin Johnson’s sermon as one of several examples where the government turns a blind eye to some political speech but not others. Farris is best known for his work with the Homeschool Legal Defense Association…but in this case, he’s representing the National Religious Broadcasters—or the NRB.

Joining the association of broadcasters is the Intercessors for America, and two Texas churches. They filed a federal lawsuit challenging the Johnson Amendment on free speech and religious liberty grounds. They say they want to be able to speak to their members about how party platforms and candidates match up with what the Bible teaches.

But taking the IRS to court isn’t as simple as filing a lawsuit…thanks to a law called the Anti-Injunction Act. That’s a federal statute that generally prevents parties from obtaining court orders blocking governmental action where it involves federal taxation. 

FARRIS: It prohibits you from suing proactively, unless you can fit into one of the exceptions. And the people that tried to dare the IRS to come after them, the IRS never took the bait, and so the ability to challenge them in the-IRS-is-coming-after-me-I'm-defending-him-mode never materialized.

But then, Farris discovered that many newspapers were actually owned or operated by nonprofits who freely endorsed and supported political candidates —newspapers like The Philadelphia Inquirer, the nation’s largest.

FARRIS: There's no statutory reason, there's no constitutional reason there's any difference between a newspaper and a church or any other nonprofit for that matter. Everybody has the right of freedom of speech, and so to be able to prove arbitrary and capricious enforcement is the key to getting around the Anti Injunction Act. So that's why now, is that I feel like I cracked that code.

At the core of the lawsuit is the plaintiffs’ claim that nonreligious nonprofits are treated differently by the IRS than are religious nonprofits and churches. For-profit and the many nonprofit newspapers are free to speak to political issues and endorse candidates without risking the ire of the IRS.

But it’s not only an attack on the law for unfairly targeting religious nonprofits. The lawsuit also contends the IRS has been arbitrary in its enforcement of the law. Plaintiffs say the IRS treats Democratic activity in churches or by religious nonprofits differently than activity by theologically conservative churches and religious nonprofits.

FARRIS: They’ve got to explain what their pattern is. Well, why did you go after Cornerstone and not these others? And so we’ll find out who they knew about, and what kind of diligence they are exercising. And so if it’s clearly they come after conservatives, that’s discriminatory. And if there’s no explanation, that’s arbitrary.

There have been attempts to repeal the law, but none have been successful. In 2017, President Trump issued an executive order that suspended enforcement of the law, but that lapsed under the Biden administration.

But not everyone thinks repeal of the Johnson Amendment would be a good thing for the public or for churches. Major philanthropic organizations like the National Council of Nonprofits oppose repealing it. It says repeal would politicize and damage the public’s trust in charities, houses of worship, and foundations.

When repeal was considered by Congress in 2017, Georgia Democratic Congressman John Lewis gave an impassioned appeal to preserve the restriction on political activity.

LEWIS TESTIMONY: This bill before us will pit neighbor against neighbor, worshiper against worshiper, and volunteers against volunteers. It will literally wreck havoc on the last pillar of civility in our country.

So even if the NRB and other plaintiffs succeed in this latest lawsuit, is it wise for churches and religious organizations to involve themselves in politics?

FARRIS: If we win, churches will have the freedom of deciding which path they want to go. And if a church wants to say, we don't want to be involved, that's fine. You know, it's not mandatory that they get involved if we win. I believe that we should be able to be free to apply God's truth to every single area of life, including the political world, including what candidates say.

Farris points to an important historical example of beneficial church involvement in politics—one which goes back to just after the country’s founding—to the election between James Madison and James Monroe. Baptist churches worked with Madison to secure the Bill of Rights of Virginia.

FARRIS: The Virginia Declaration of Rights of 1776 that George Mason wrote only had religious toleration, and toleration is a cheap imitation of religious liberty.

As a Federalist, Madison was comfortable with that wording, but the Baptists were concerned that there wasn’t enough protection for free exercise of religion. So when it came time to draft a federal constitution, the Baptists asked for a meeting.

FARRIS: They basically set him down and said, ‘You're not going to get the Baptist votes unless you promise to give us a federal bill of rights that includes religious freedom.’ And he made the promise. They made the deal, and he kept his promise, and it was because of a deal cut in a Baptist church context where they communicated it through that we got the Bill of Rights, so I think there’s a pretty good history here.

The case has only begun, and Farris says that he hopes to be able to get to a point of gathering facts so that attorneys can see how the government has enforced or not enforced the restriction in the past. He is deliberately not fast-walking the litigation, as he doesn't want it to be about the 2024 election.

Farris says churches need the freedom to be able to speak up in public debate … not because the church has become more political, but because more of society has become political.

FARRIS: The political world was much more constrained when I was in high school, but we've invaded God's jurisdiction in a much more direct way, like, Did God create men and women as biological creatures? That was never a political issue. But it's a political issue today, but that's just straight on God's jurisdiction. And so I think that, you know, if ever there was a time that churches need to . . . be speaking out on these issues, it's right now, because of the egregious atmosphere in society that we're living in today.

That’s this week’s Legal Docket. Reporting for WORLD, I’m Steve West.

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