Submitted by AMAC Member Brent Benton –
There’s a fight brewing that you should know about. While many Americans today are concerned about losing our present liberties, this fight is about regaining a liberty lost more than 60 years ago.
In the mid-1950’s Lyndon Johnson was deeply involved in a hotly contested senatorial race in Texas. The opposition he faced included two organizations actively supporting Johnson’s opponents. Looking to counter this opposition, he proposed an amendment to the IRS tax code which was under consideration at the time. This amendment, which came to be called ‘The Johnson Amendment’, worked to withhold tax-exempt status from certain organizations that actively supported pending legislation or political candidates.
The amendment, the now well-known Section 501(c) (3), was passed on a voice vote (1954). There was little legislative analysis or consideration of the effects the amendment might have on broader constitutional rights. Whether the move was one of political maneuvering or tax reform, one consequence was that churches and religious organizations were suddenly and inexplicably thrown into the 501(c) (3) exemption category. As a result, and contrary to all historical and constitutional traditions, churches were suddenly disallowed from discussing many aspects of politics.
The longstanding historical view has been that the political and social ‘voice’ of the church is beneficial to the wider society. For example, churches were early and loud protestors of slavery in America, with pastors such as Henry Ward Beecher preaching with great influence. Issues such as ending child labor, granting women’s suffrage, and promoting American independence were all proclaimed from pulpits across the Republic. The passage, in 1954, of changes to the tax code largely silenced that voice.
While the 1954 law did not restrict all political commentary, the implied legal threat to churches as well as ambiguities in the law’s wording, created an environment of self-censorship. Pastors not only abided by the letter of the law but effectively ceased preaching on most political topics. The impact of the law has been carried well beyond its original intent. Issues such as abortion, the definition of marriage, etc. rarely receive much more than passing references.
Although reviews of churches in the recent past has been sporadic, the IRS now appears to be moving forward with plans to bring churches under closer scrutiny. Last year a Treasury official announced that new rules for church auditing were ‘close’ to completioni. This could mean that the IRS may once again begin reviewing church speech.
Nevertheless, the stage may be set for challenging the Johnson Amendment in court. Once there, legal scholars believe there is a good chance it will be ruled unconstitutional. Factors such as the strength of historical precedent, the manner in which the Johnson Amendment came into existence, the uneven enforcement of the amendment, and recent court cases have convinced many that the Johnson Amendment’s days are numbered. Attorney Erik Stanley, writing in the Regent University Law Review, noted:
. . . recent Supreme Court decisions. . . provide substantial guidance and support to the argument that the Johnson Amendment is hopelessly unconstitutional.ii
In an attempt to force the issue, an effort was organized in 2008 to mobilize churches, encouraging them to exercise their freedom of speech and, ultimately, to test the constitutionality of the amendment. On October 7, 2008, 33 pastors from 22 states participated in what was called ‘Pulpit Freedom Sunday’, an effort sponsored by the ‘Alliance Defending Freedom’ (ADF) organization. In that year, these pastors preached sermons evaluating various political candidates in light of Scriptures, and they made specific voting recommendations to their congregations. They recorded their messages and mailed copies to the IRS. The goal was then, and continues to be, to induce the IRS to revoke a church’s tax-exempt status and, ultimately, to send the issue to court. The ADF and the Pulpit Freedom Sunday participants believe that once tested in court, the amendment will be ruled unconstitutional and churches will once again be free to preach as they see fit.iii Pulpit Freedom Sunday has been an annual event since 2008 and has grown every year with more than 1100 pastors participating in 2013.iv
Nevertheless, uneven enforcement by the IRS remains a concern for some groups. On November 14, 2012, the ‘Freedom From Religion Foundation, Inc.’, filed a complaint in the US District Court, Western District of Wisconsin, naming the IRS as defendants in a suit alleging that the IRS violated the Establishment Clause of the First Amendment by failing to enforce the electioneering restrictions of the 501(c) (3) clause. This and other cases are still pending.
Churches, when they are free to preach as they choose, can be a powerful force for disseminating positive moral and ethical values throughout society. Today there are few opposing voices to the negative messages bombarding children and adults alike through media such as television, movies, and the internet. Returning to pastors the freedom to point out cultural shortcomings, encourage the election of Godly men and women to government offices, and suggest alternative ways forward for our nation can be a major step in helping America restore the values many believe are being lost.
Regardless of how the jabbing and sparring plays out, the issue of church censorship will remain unresolved until the courts rule on the amendment’s constitutionality. In the meantime, it is important to know and understand that this fight is in progress, to be aware of the courageous pastors that preach political messages when they deem it necessary, and to support the many efforts underway to un-muzzle churches and bring freedom of speech back to the pulpits.
i. ——. “IRS Official: We Are Close to Auditing Churches Again”. SpeakUpMovement.Org Website, http://blog.speakupmovement.org/church/churches-and-politics/irs-official-we-are-close-to-auditing-churches-again/.
ii. Stanley, Erik W., “LBJ, The IRS, and Churches: The Unconstitutionality of the Johnson Amendment in Light of Recent Supreme Court Precedent”, Regent University Law Review, Vol. 24, No. 2, (2011-2012): 261.
iii ——. “History of Pulpit Freedom Sunday”. SpeakUpMovement.Org. Website, http://www.speakupmovement.org/church/LearnMore/details/5253.
iv. Clark, Heather, “Pastors Nationwide to Challenge Government Speech Regulations on ‘Pulpit Freedom Sunday”. Christian News Network. June 9, 2013, http://christiannews.net/2013/06/09/pastors-nationwide-to-challenge-government-speech-regulations-on-pulpit-freedom-sunday/