Repeal the Johnson Amendment to Free Religious Speech

At the National Prayer Breakfast February 2, President Trump pledged to repeal the “Johnson Amendment,” a provision added in 1954 to the Internal Revenue Code that is the statutory basis for the IRS to deprive a church of tax-exempt status if it does not comply with the Amendment’s absolute prohibition on any political engagement that is not bipartisan. Tax exempt (501[c]) status does two things: it frees the entity that enjoys it from federal income tax and allows donors who contribute to that entity to treat their gifts as tax deductible. To lose status under §501(c) of the Internal Revenue Code, therefore, is a double-whammy: the entity itself incurs taxes and those who support its work cannot benefit tax-wise by their donations. §501(c) entities are the most common non-profits under the tax code; they include charitable foundations, universities, and churches, i.e., bodies that perform charitable works, works that benefit society.

The Johnson Amendment was quietly slipped into the Internal Revenue Code on a July Friday by the senior senator from Texas, Lyndon Baines Johnson. Johnson admitted the bill “seeks to extend the provisions of section 501 of the House bill, denying tax-exempt status not only to those people who influence legislation but to those who intervene in any political campaign on behalf of any candidate for any public office.” The Congressional Record shows no debate: Johnson proposed the amendment, the leadership registered no objection to instructing the Senate to try to add it to the final version of the bill, and then “[t]he amendment was agreed to.”

Historians generally admit that Johnson’s aim was partisan: he was targeting two organizations that were calling him a “‘closet communist’” ahead of the 1954 Texas Senate election.

The New York Times claims that the Johnson Amendment has never been vigorously enforced, and so never really harmed any religious groups. The paper therefore attributes a more sinister motivation to efforts for its repeal: to “flood our political system—especially Republican coffers—with still more money, all of which would be tax deductible.” That argument presumably resonates with opponents of a rigid “wall of separation” between church and state.

Let’s consider the issues.

The First Amendment protects five fundamental rights: freedom of religion, speech, press, assembly, and petition. Note that there are five rights in the First Amendment, not six. There is one right to freedom of religion, which prohibits an “establishment of religion” and interference with ‘the free exercise thereof.”

This distinction is crucial to clearing up much of the muddle in contemporary federal “jurisprudence” concerning religion. As the late Rev. Richard John Neuhaus untiringly repeated: the First Amendment has one religion clause, not two. The “no establishment of religion” clause and the “free exercise” clause are not like two boxers circling each other in a ring, ready to pummel each other to pieces but for the watchful eye of a judicial referee. Rather, as Neuhaus noted, “no establishment” was a means to the end of “free exercise.” Congress is barred from creating a state church in order not to impede free exercise. But that does not mean that, for the Constitution, religion and non-religion are of equal standing. The Constitution protects religion as the “first right.”

Seen in that perspective, the Johnson Amendment stands not in continuity but discontinuity with the American tradition regarding religion. Thinking that public life must be defoliated of religion and its influence is a false understanding of that tradition: the Constitution does not require a “naked public square.”

The very sparse record on the adoption of the Johnson Amendment leads no suggestion that it was originally aimed primarily at religion. As noted above, Johnson was out to settle scores with his political opponents. The 83rd Congress, which passed the Johnson Amendment, is the same Congress that three weeks earlier added the phrase “one nation, under God” to the Pledge of Allegiance. The National Prayer Breakfast began the year before the Johnson Amendment was adopted. The 84th Congress (in which Johnson had become Senate Majority Leader), the one following enactment of his amendment, adopted “in God we trust” as the national motto. The 1950s was hardly a time of roiling secularism. Aggressive secularism came into its own in the 1960s and sometimes used the Johnson Amendment as a threat to intimidate religious believers, but it is not at all clear that the Congress which adopted that law intended any such outcome.

Religious freedom, in all its wonderful, public expression, is the first right of every American. People have the right to be religious and to draw out the implications of what being religious means for how they live their lives. Let’s also be honest: nothing in that last sentence that would have raised an eyebrow from most Americans for most of American history. That is, before the Obama Administration chose to antagonize and politicize religious freedom in its crusade for abortifacient coverage under Obamacare.

Most Americans—including Protestants, heirs of the “grace alone” (sola gratia) tradition that downplays or negates the significance of good works—recognize that genuine religious conviction is a 24/7 proposition. The believer who goes to church on Sunday cannot and should not be a morally different person from the believer who goes to work on Monday. Indeed, one of the greatest criticisms of believers is religious hypocrisy, a position shared even by the faith community. Vatican II speaks not just of theoretical atheists who reject God on philosophical or ideological premises, but of “practical atheists” who profess God with their lips but not their lives (Gaudium et spes, #19). Indeed, Pope Benedict XVI called such religious lip service “even more destructive” than perhaps theoretical atheism.

We are all acutely aware of the scandalous corrosion of faith caused by betrayed religious trust, be it on the part of Catholic priests who engage in sexual abuse (and the bishops who cover them up) or of Protestant ministers like fictional Elmer Gantry or real life Jimmy Swaggart.

So what does this have to do with religious freedom? The Left would have us believe that, because some Christians live double lives, all Christians should simply shut up about faith and morals. That position, of course, tracks well with their “non-judgmentalist” privatization of morality.

But the existence of “practical atheists” contradicting their faith by their lives seems to me to make the case all the stronger for a simpler proposition: live and bear witness to your faith consistently, 24/7, in church on Sunday and the workplace on Monday. If a believer is integrated and authentic—everything within him is united and there is a transparency between the inner and outer man so that “what you see is what you get”—then the believer has a right and duty to address everything, including politics. There is no area of life off-limits to the evaluative and transforming light of faith. That’s why the Johnson Amendment should go: it privatizes one aspect of life (politics) as excluded from the public engagement of the believer. But, for a true believer, nothing is off limits to either his internal beliefs or his external action, including his speech.

But the First Amendment has other rights, too. Right after the “first right”—religion—comes the second, free speech. “Congress shall make no law” regulating speech. American jurisprudence has rightly recognized that there are limits to free speech—a classic example is the famous dictum against “shouting fire in a crowded theater,” articulated in Schenck v. United States, 249 US 48 at 52—but American law has in general recognized a very robust, broad, and unfettered range of speech. The law almost always lays the onus probandi not on the speaker but the one who would silence him. The Supreme Court’s controversial 2010 Citizens United decision, striking down in the name of “free speech” parts of the 2002 McCain-Feingold campaign reform act limiting what a corporation can spend on candidates shows just how broadly the right to engage and support political discourse has been regarded.

In that light, the Johnson Amendment also is an anomaly. If a union or a for-profit corporation can spend money in the name of “free speech” to promote candidates who share its views (or oppose those who don’t), then why should churches be excluded from doing the exact same thing? What makes churches different?

The immediate answer would be: corporations make profits, whereas 501(c) entities are supposed to be non-profit. From where, then, would they have the money to contribute to candidates?

This objection might have cogency if the real driver here was churches wanting to give money to candidates. Church advocacy is usually far more simple. Ministers don’t want to buy air time in expensive urban media markets. They want to talk locally and unrestrained, from their own pulpits to their own congregations.

The Johnson Amendment has in fact chilled and deterred ministers from doing precisely that. In order to talk about moral issues of the day and the positions taken by today’s leaders and wanna-be leaders, clergy often resort to indirection. Such equivocation is consistent neither with the American tradition of robust free speech nor the great Biblical tradition of speaking truth to power. Did Nathan mince words to David? Did John the Baptist consider Herodian tax implications? That is what galls most opponents of the Johnson Amendment.

Indeed, even if the Johnson Amendment is enforced only sporadically—as the New York Times claims—then what does that tell you? That a largely dormant legal provision remains available, to be arbitrarily wielded for selective prosecution? And how would one gather the evidence? Normally, IRS review is initiated by complaints from third parties. Can we envision IRS auditors going to take notes on Sunday sermons? Consider the “sanctuary” violations such a modus operandi would entail. Or will the government subpoena sermon texts? That’s hardly far-fetched, considering Houston’s 2014 attempt to strong-arm ministers who opposed homosexual behavior and preached against it. If the law is practically moribund, it should be repealed; otherwise, it becomes a tool for IRS targeting, another not-unheard-of phenomenon in recent years.

Critics could come back with the claim: there’s a difference. Churches don’t pay taxes. And they would try to treat repeal of the Johnson Amendment as demanding a quid pro quo: freedom of speech in exchange for becoming a tax ratable.

Well, no.

1. We need to differentiate between non-profit status (which makes the money a 501(c) entity receives tax-free) and freedom from other taxes, e.g., property taxes. Church property tax exemption preceded the Johnson Amendment and has a long history in the United States. It is in some ways separate from the Johnson Amendment and, as was noted above, there is practically nothing in the history of what the federal government did vis-à-vis religion in the 1950s to suggest that the government was opposed to religion. Those who wanted to erect high walls of separation between church and state in the name of secularism came later, and have no basis to hijack the Johnson Amendment to threaten the American tradition—consistent with the American preference for religion—by calling tax breaks for churches into question.

2. The two issues are indeed separable. While nobody is entitled to a tax exemption, everyone is entitled to freedom of religion and freedom of speech. The government does not have to provide a tax exemption, but it is odious to provide one on the condition that you forego your basic rights: you can receive a social benefit if you give up the first two rights the Constitution provides to you.

3. Some critics might try to draw an analogy to the Hyde Amendment, which denies federal payments for abortions, even though Roe v. Wade established the abortion liberty as a basic right. How is the Johnson Amendment different? Advocates of abortion funding want something positive: they want the government to pay for abortions. Under Roe, you have a right to abortion, but not to one paid for by somebody else. Advocates of repeal of the Johnson Amendment only ask for something negative: not being penalized financially for exercising their basic rights. So, the parallel to Hyde fails. The more proper analogy would be: repealing Hyde does not create a negative but rather a positive obligation towards some asserted Constitutional right. Having a right to abortion that is paid for by the state is like having a right to speech in which the government has duty to buy me airtime.

4. If anybody has any lingering suspicions of clerics run amuck after repeal of the Johnson Amendment, then I also suggest a possible middle ground. Just after President Trump announced support for repealing the Johnson Amendment, Congressman Steve Scalise of Louisiana and Jody Hice of Georgia (a Baptist preacher) introduced HR 781, a bill allowing “charitable organizations to make statements relating to political campaigns if such statements are made in the ordinary course of carrying out its tax exempt purpose.” In other words, if a preacher does what he is supposed to do, i.e., preach in a church, and his preaching includes political statements, that would be allowable. HR 781 seems to offer a compromise that avoids the controversy Citizens United represents: churches can talk about political matters (which is, after all, a fundamental right of every American), but not contribute to politicians (which therefore removes the charge that specially privileged tax entities are feeding money to political friends). Being free to talk should not be controversial: the Left professes usually to be the most vigorous opponent of “gag” rules, and if there is any class that should be held accountable through conversation, that should not be immune from being talked about, it’s politicians.

5. Saying all this, I recognize that the involvement of churches in politics is something that prudently should be avoided. It is not the role of churches to promote political agendas, nor should they typically do so. That said, there may be instances when, indeed, they need and should speak truth to power. In those instances, the law should not gag them or penalize them by depriving them of a benefit because they exercised a right. The Johnson Amendment should go.