One of the clearest lines in the sand that separates religion and politics in America is something known as the Johnson Amendment. Last week, President Donald Trump vowed to “totally destroy” it.
The amendment, named after the Texas senator who proposed it in 1954 and later became president himself, Lyndon B. Johnson, bans political activity on the part of nonprofit groups exempt from taxes under section 501(c)(3) of the tax code. Included are charities, religious organizations, educational institutions and places of worship.
The relevant part of the law requires such nonprofits to not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”
As might be expected in the case of any new proposal touching upon the “church-state” issue, President Trump’s declaration, which reflects a campaign promise he made, brought both cheers and jeers.
“We are encouraged to see that President Trump understands the very real constitutional violation posed by the Johnson Amendment and that he is committed to restoring a pastor’s right to speak freely from the pulpit without fearing government retribution,” said Erik Stanley, senior counsel for the conservative Christian legal group Alliance Defending Freedom.
On the other side of the chasm, Barry Lynn, executive director of the unambiguously named Americans United for Separation of Church and State, said the proposed change in the law would be “a disaster for both churches and politics in America.” He charged that “President Donald Trump and his allies in the religious right seek to turn America’s houses of worship into miniature political action committees”; and warned that abolishing the Johnson Amendment would lead to some houses of worship supporting candidates in exchange for financial and other aid.
Nearly 80% of Americans, according to a 2015 poll, believe that it is inappropriate “for pastors to publicly endorse political candidates during a church service.”
Scrapping the Johnson Amendment, though, has long been a goal of Christian conservatives, who contend that it violates free speech and religious freedom rights, which are granted all citizens by the Constitution’s First Amendment.
The rule does, at least in theory, constrain members of the clergy from declaring from the pulpit that a particular candidate should be supported or opposed. But a clergyman’s right to state his personal opinion in a different, nonreligious, context is not affected. And even if the venue is a house of worship and the statement made in the name of religion, the Johnson Amendment doesn’t ultimately limit the clergyperson’s speech; it only affects the house of worship’s tax-exempt status.
What is more, the Johnson rule doesn’t prevent a nonprofit organization or institution from publicly advocating regarding issues, even if such advocacy signals a position about a particular candidate or political proposition.
In practice, the rule hasn’t greatly fettered anyone. While complaints about religious representatives preaching politics from pulpits have regularly been filed over the years with the IRS, only one house of worship has ever lost its tax-exempt status for engaging in partisan politicking. And that was in 1995.
All that said, though, changing the law — and repealing the Johnson Amendment would require an act of Congress — to allow clergy and charities to freely speak their political minds without inhibition or fear of lost tax-exempt status might be an idea whose time has come. Many religious teachings, especially today, have political implications, and clergy pointing that out explicitly should not be discouraged. A case can certainly be made that the government shouldn’t be playing any role in monitoring how far toward politics a sermon has strayed, and that religious liberty would be served well by repealing the current rule.
But there are in fact dangers to overtly politicizing the not-for-profit sphere. Charities and houses of worship would feel pressures to spend resources better spent elsewhere on political campaigns; people would make decisions about supporting charities or houses of worship based on what candidates the institutions support; institutions would become subject to pressure from politicians and their supporters. Places of prayer might become places more of politics.
It’s, as the British say, a sticky wicket. Is the current rule something that “ain’t broke” and in no need of fixing? Or does it insult freedom of speech?
It would appear that a middle of the road approach, one that perhaps loosens the current restrictions enough to send a message about religious liberties while still ensuring that pastors won’t start selling their pulpits for political cash, would be an idea worth considering.
It would be useful for our community’s nonprofit organizations — after seeking the guidance of their spiritual leadership — to weigh in with their feelings on the matter, and together formulate a cogent position to communicate to our representatives in Congress.