IRS Finally Recognizes That the First Amendment Permits Pastors To Speak From the Pulpit

Surely, in today’s America, the federal government can’t punish pastors for preaching from the pulpit about how to apply God’s Word to everyday life.

And yet, for seventy years, the Internal Revenue Service did just that.

It used a provision of the Internal Revenue Code called the Johnson Amendment—inserted in 1954 by then-Senator Lyndon B. Johnson to stymie his political opponents—to chill free speech in churches.

The amendment uses nebulous language designed to prevent nonprofits from expressing views on political issues and candidates. The relevant language says that an entity will retain its nonprofit status only if it:

. . . does 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.

What that means has been largely left to the IRS’s discretion. While the IRS has generally said it doesn’t prioritize enforcing this provision (more on that in a minute), the fact that it’s there wrongly chills pastors’ and parishioners’ First Amendment rights.

But even more troubling has been the IRS’s uneven enforcement.

For years, Democrat candidates have campaigned at black churches, often engaging in quasi-campaign rallies during worship services. For example, when President Joe Biden visited one service, the pastor declared, “we love you President Biden,” and the congregation chanted “Go Joseph.” Of course, no IRS enforcement action followed.

But on the other hand, when a pastor at a more theologically conservative evangelical church pointed out inconsistencies between Biblical values and the Democratic Platform during the run up to the 2020 election, the IRS found that this violated the Johnson Amendment and imposed a penalty on the church.

On top of that, the very next year the IRS denied nonprofit status to an organization called Christians Engaged because it “educate[s] Christians on what the [B]ible says” and the “[B]ible teachings [at issue] are typically affiliated with the [Republican] Party and candidates.” According to the IRS, this “disqualifie[d]” Christians Engaged from receiving nonprofit status. Although the decision was ultimately reversed, the damage to the First Amendment had been done.

Fortunately, the IRS agreed earlier this month to interpret the Johnson Amendment more narrowly. It agreed that “the Johnson Amendment does not reach speech by a house of worship to its congregation, in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.”

It’s now clear—although it should have been clear all along—that pastors can talk to their congregations about how to view certain salient political issues (like abortion) through a religious lens.

Sadly, the IRS only agreed to this concession as a result of a lawsuit filed by several churches and religious organizations. And the parties and IRS have asked the federal court hearing the case to enter an agreed-upon order reflecting the IRS’s new position.

That’s good news. And the order will protect the parties who brought this case. But a different IRS Commissioner under a different presidential administration could interpret the Johnson Amendment in a more speech-restricting manner against different parties since the statutory text remains. Congress should act and repeal it. And some members of Congress have proposed doing just that.

From the beginning, the Johnson Amendment was designed to stifle politically disfavored speech. After all, that may have been one of the motivating factors behind LBJ adding this statutory language.

But what should have been clear all along has now been made explicit: Neither statutory language nor the IRS’s interpretation of it can trump the Constitution. Americans have a First Amendment right to freely exercise their faith and a First Amendment right to freely speak their minds, especially on religious and political issues and how the two arenas intersect.

While the IRS has used the Johnson Amendment to penalize certain churches and stifle their speech, that no longer can be the case, at least for now. But regardless of whether a tax penalty is imposed, it’s important for pastors and parishioners to have the courage of their convictions and to speak the truth regardless of consequences.

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