Proposed IRS Agreement That Protects Speech in Churches Faces Challenge

Americans United for Separation of Church and State (AU), an anti-religious group, has asked the court for permission to intervene in the case to oppose the agreement. Separation of church and state is a concept where government and religion are independent, yet, ironically, this effort appears to support the government dictating what churches can and cannot say.

If approved, the consent decree would only prohibit the IRS from enforcing the Johnson Amendment against the three parties in the case, the NRB, Sand Springs Church, and First Baptist Church Waskom.

In the amicus brief, Liberty Counsel explains that prior to becoming president then-Senator Lyndon B. Johnson introduced this amendment to the Internal Revenue Code after barely winning his Senate primary due to staunch opposition from nonprofit organizations. Johnson won the Democratic primary after false ballots appeared after the polls closed, each in alphabetical order and in the same handwriting. The Johnson Amendment, adopted in 1954, was “political vengeance” to “silence his critics” and has since been used to silence churches and other nonprofit religious organizations.

However, Liberty Counsel notes, the protection of the First Amendment is “at its zenith” when it comes to “core political speech.” Liberty Counsel argues the court should adopt the decree and limit the Johnson Amendment because it violates that protection by prohibiting churches from speaking about any political candidate or giving their congregants spiritual guidance from a biblical perspective on voting. For many churches, the amendment is “doubly egregious” since political speech is “inextricably linked” to their “religious duty, doctrine, and faith” to make informed choices about government leadership, laws, and policies that affect them.

Specifically, the Johnson Amendment violates the First Amendment in the following ways:

• It is vague and overbroad and thereby leads to inconsistent enforcement causing many churches to steer away from discussing any political matters to avoid scrutiny from the IRS.
• It infringes on the right to engage in political expression and association enshrined in the Bill of Rights.
• It violates the Religious Freedom Restoration Act because it constitutes a substantial burden on the free exercise of religion for churches that view political involvement as integral to their mission.
• It undermines the church autonomy doctrine by authorizing the IRS to interfere with and control matters of a church’s faith and doctrine, including a church’s communications on core political speech.

According to the consent decree, the IRS agreed to view endorsements of political candidates from the pulpit as private matters, not as a form of campaigning. The IRS said that if a house of worship endorsed a candidate to its congregants, the agency would view that not as campaigning but as a private matter, like “a family discussion concerning candidates.”

The motion for the decree reads, “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. 

To ‘participate’ in a political campaign is ‘to take part’ in the political campaign, and to ‘intervene’ in a political campaign is ‘to interfere with the outcome or course’ of the political campaign. Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services, do neither of those things, any more than does a family discussion concerning candidates. Thus, communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.”

Liberty Counsel Founder and Chairman Mat Staver said, “The Johnson Amendment threatens churches into silence when they have a right to speak. The government has no business telling churches what they can and cannot say. The IRS has selectively threatened conservative religious churches while giving liberal churches a free pass. The IRS is neither qualified nor lawfully permitted under the Constitution to police the political speech of churches.”