"Neither Church nor State Would Benefit:" Americans United Argues Against Invalidating the Johnson Amendment

Americans United for Separation of Church and State argues that churches are free to talk all they want about political issues, just not candidates who take stands on those political issues.  They are saying that the Broadcasters and Three Churches don't have anything to complain about.  I'm not so sure.  The Broadcasters and Three Churches argue that (1) they don't want to explicitly endorse or oppose anybody, (2) they just want to talk about political issues from a Biblical standpoint without fear of losing tax exemption.  Yeah, let's not be stupid.  They want to endorse without naming, that's what they are worried about.  And even without calling no names, it will all be pretty obvious.  It's attractive at first, but Americans United's argument can't resolve the issue as long as you might be a violator without calling names.  Because you don't have to call no names to be violating.  Context and timing can make you a violator.  Nevertheless, if I am a judge just trying to mind my own business, I would dismiss this case on mootness and standing.    

Here is Americans United's thoughtful press release:

Two Texas churches and the National Religious Broadcasters (NRB) have filed a lawsuit seeking to overturn a federal law that bans tax-exempt, 501(c)(3) organizations, which includes houses of worship, from intervening in partisan politics by endorsing or opposing candidates.

This lawsuit, filed in a federal court based in Texas, is an audacious gambit that should be swiftly rejected.

The law in question, known as the Johnson Amendment, protects the integrity of our elections by ensuring that tax-exempt organizations stay focused on their missions, which is usually charitable, spiritual or public policy work, not partisan politics. If the churches in Texas and the NRB, which has espoused Christian Nationalist views, want to engage in partisan politics, there are appropriate vehicles for that. Allowing tax-exempt entities to jump into partisan electioneering, and even funnel money to candidates, would create a huge loophole in our nation’s campaign finance laws.

Americans reject pulpit politicking

In addition, the American people don’t want this. Polls are crystal clear: Americans oppose pulpit politicking. A poll released in November of 2022 by the Pew Research Center found that 77% of respondents said they oppose partisan politicking in America’s houses of worship.

In a statement supporting the lawsuit, Troy A. Miller, the NRB’s chief executive officer, misconstrued the parameters of the Johnson Amendment.

“We believe,” Miller asserted, “that all nonprofits should have the constitutional right to freely express their point of view on candidates, elections and issues on the ballot. Our challenge to the Johnson Amendment is about securing the future of free expression for all Americans, particularly those standing in the pulpit.”

Issue advocacy is protected

But nonprofit groups, including houses of worship, already have the right to express their views on political issues. The Johnson Amendment applies only to races between candidates. Thousands of secular nonprofits follow this rule with no problems. There’s no reason why churches can’t do the same.

The Internal Revenue Service (IRS) is charged with the task of enforcing the Johnson Amendment. It’s true that the agency isn’t particularly aggressive in making sure the law is followed. And while the majority of American religious leaders abide by the Johnson Amendment, every election season, we do see a few violations. (Here’s an example from May 2022.)

The answer here is for the IRS to enforce the law, not to abandon it. If the lawsuit were to succeed, it would have profound and overwhelmingly negative effects on our political system.

Neither church nor state would benefit.

darryll k. jones