Can Churches Police Themselves? Johnson Amendment Advocates Think Not

At its core, the Johnson Amendment should deeply offend religious leaders.

The Johnson Amendment, passed in 1954, is a speech restriction in the tax code that prohibits all nonprofits—including churches—from “participating” or “intervening” in elections (though no one, including tax experts, really knows what that means). President Donald Trump has repeatedly pledged to repeal the Johnson Amendment. And now, the House of Representatives has included an amendment to the law in its tax bill that would fix the Johnson Amendment’s unconstitutional speech restrictions.

The bottom line is that the Johnson Amendment infringes on the First Amendment rights of churches and pastors because it allows federal bureaucrats to determine what pastors can and can’t say. Alliance Defending Freedom has long advocated for a fix to the Johnson Amendment because of this.

Yet, there seems to be some confusion about the purpose of the Johnson Amendment and a willful ignorance of its practical effects.

At National Review, Alex Entz writes that keeping the Johnson Amendment protects the church, as “A close connection between the church and daily state affairs will, inevitably, destroy the church.” It’s similar to the claims of many others, including some religious leaders, who assert the Johnson Amendment helps preserve the “separation between church and state.”

So we need the government to protect the purity of the church?

In making this argument, Johnson Amendment advocates imply that churches cannot be trusted to make wise decisions for themselves – that they need the government to ensure that churches do not become too intertwined with politics.

But that responsibility should be left with each individual church and its pastor. A majority of pastors across the country agree. A recent LifeWay poll found that 91% of Protestant pastors agree that pastors should have the right to speak freely from the pulpit without fear of government punishment. What’s more is that 73% agreed that Congress should remove the IRS’s power to penalize a church because of the content of its pastor’s sermons.

This doesn’t mean that all pastors want to talk about candidates and elections in their sermons. But it does mean that what a pastor preaches from the pulpit is a purely theological decision that should be made at the church level, not by government bureaucrats.

The idea that the government needs to police the church also assumes the goodness of government. With the IRS as the government agency overseeing church and pastor speech, that assumption is – frankly – laughable. We need only look at the many scandals the IRS has been involved in the past few years to see that it can’t be trusted. At the top of the list is its targeting of conservative groups.

To put it mildly, impartiality is not the IRS’s strong suit.

As recently as 2014, the IRS told an atheist group that they were targeting a list of 99 churches for “high priority investigation,” which can mean audits, steep fines, and a loss of tax-exempt status.

With the Johnson Amendment’s vague standards, the IRS can go after a church for addressing any topic it deems too “political.” Since the culture has transformed many biblical issues into “political” issues, this is not such a remote possibility. As a result, many churches stay away from discussing certain biblical issues such as abortion and marriage for fear of IRS action. 

It’s clear that keeping the IRS out of the pulpit is what truly promotes the “separation of church and state.” Fixing the Johnson Amendment would encourage more separation, not less – giving each individual church and pastor the power to decide what issues they address from the pulpit and disentangling the IRS from meddling in church affairs.

The House has it right: We must fix the Johnson Amendment.