How the recent IRS filing challenges the boundaries between faith and politics

Yahoo

4 days ago

The 1992 ad began with a warning in bold, all-caps: 'Christian Beware.'
The text of the ad went on: 'Do not put the economy ahead of the Ten Commandments. Did you know that Gov. Bill Clinton …' The ad, which appeared in the USA Today and the Washington Times, listed Clinton's stances on 'abortion on demand' and 'the homosexual lifestyle' and accused a then-presidential candidate of promoting policies 'in rebellion to God's laws.' The ad posed an urgent question : 'How then can we vote for Bill Clinton?' At the end, the ad solicited tax-deductible contributions.
The ad was put out by The Church at Pierce Creek, a non-denominational church in Conklin, New York. It also became one of the rare cases of the IRS enforcing the Johnson Amendment, a 1954 provision of the U.S. tax code that bars tax-exempt organizations, including churches, from endorsing or opposing political candidates.
In 1995, the IRS retroactively revoked the church's tax-exempt status, arguing the ad crossed the line into prohibited political activity. In response, the church, operating under the name Branch Ministries, sued.
But in the 1999 case Branch Ministries v. Rossotti, the D.C. Circuit upheld the IRS's decision, ruling that the church was still free to speak politically, it just couldn't do so while claiming the benefits of tax-exempt status.
For decades, that interpretation stood largely unchallenged — until now.
A surprising reversal
In a surprising turn, the IRS recently signaled it would stop enforcing the Johnson Amendment in certain cases.
In a proposed settlement filed in a federal court in Texas on July 7, the IRS agreed not to penalize two Texas churches for endorsing political candidates during regular church communications.
The IRS agreement emerged as part of a proposed settlement in a 2024 lawsuit filed by a coalition of conservative religious organizations, including National Religious Broadcasters, Intercessors for America and two Texas churches — Sand Springs Church and First Baptist Church of Waskom. Both argued that the Johnson Amendment violated the First Amendment rights of faith-based institutions, particularly when endorsements were made during worship services.
The IRS's decision not to treat such sermons as campaign intervention marked a significant shift from past interpretations of the law. 'Communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted,' according to the IRS filing.
Since the news about the IRS filing, Americans United for Separation of Church and State has filed a motion to intervene in the lawsuit, urging the court to reject the proposed settlement and defend the endorsement limitation for churches.
Although the judge hasn't ruled on either of the proposals yet, the filing has reignited long-running debates about whether the Johnson Amendment protects the integrity of religious institutions or improperly limits their speech.
Supporters of the change, including Speaker Mike Johnson and some evangelical leaders, see it as a win for religious freedom and free speech. 'The Founders wanted to protect the church from an encroaching state, not the other way around,' Johnson wrote on X. President Donald Trump said he loved 'the fact that churches can endorse a political candidate.'
Critics, however, warn of the dangers of entangling churches with partisan politics. Because churches are exempt from the financial disclosure rules that apply to other nonprofits, they could become vehicles for untraceable campaign spending if allowed to endorse candidates, experts say. 'Our faith should inform our vote,' said Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty. 'Our votes shouldn't drive our faith.'
Whether the IRS's proposed shift becomes policy or not, it has brought renewed attention to a broader question: What are the appropriate boundaries between faith and politics in a house of worship? And can rules like the Johnson Amendment help preserve both religious integrity and democratic fairness?
An 'unorthodox way'
While the proposal does not formally change the law, it opens the doors for churches, who choose to do so, to endorse political candidates without risking their tax-exempt status, experts say.
'It does serve as a signal to churches that, at least under the current IRS, some amount of candidate endorsement is tolerated,' said Sam Brunson, professor at Loyola University Chicago, who specializes in tax law. 'It gives kind of a legal reasoning for that, even if it's not a binding legal reasoning.'
The filing 'is NOT a repeal of the Johnson Amendment. It does not change the law, nor does it protect all churches from potential enforcement,' Tyler emphasized in a statement.
But the way the policy was introduced was significant on its own, Tyler said. 'It was a very unorthodox way to go about tax policy,' she said. Rather than issuing formal guidance, she said, the IRS appears to be attempting to change enforcement by bypassing the normal regulatory process without the act of Congress. Brunson called the filing a ' troubling, but at the very least interesting attempt' to get around procedures for issuing tax regulations.
Brian Galle, professor at the University of California, Berkeley, who teaches on taxation and nonprofits, said the filing, at least now, does not carry much legal weight: 'I think the promise right now that our charities can participate in politics isn't worth that much — at least for careful lawyers.'
If the judge signs the proposed order, the IRS under the current administration would be prohibited from enforcing the Johnson Amendment against the two churches.
The Trump administration could attempt to formalize a policy change through regulation, but Galle believes that's unlikely. 'The reason the IRS probably won't issue a regulation is because it would be illegal,' he said, pointing to the Supreme Court's 'major questions doctrine,' which bars federal agencies from making significant policy shifts without clear authorization from Congress.
The current filing isn't 'legally binding,' he said, which means that the IRS under a future administration could change its mind on the issue. But for now, it marks an important, and controversial, shift in how the IRS interprets the boundary between religious speech and political activity.
Churches endorsing candidates
Although the cases of the IRS enforcing the Johnson Amendment are rare, church leaders have often endorsed political candidates.
One early example dates back to 1800, when the Rev. William Linn, a Dutch Reformed minister, publicly opposed Thomas Jefferson's presidential candidacy. Linn published a pamphlet titled 'Serious Considerations on the Election of a President,' in which he questioned Jefferson's religiosity: 'Does Jefferson ever go to church? How does he spend the Lord's Day? Is he known to worship with any denomination of Christians? ... Will you then, my fellow-citizens, with all this evidence ... vote for Mr. Jefferson?'
Linn faced no legal consequences for his advocacy, according to a 1997 Regent University Law Review article, which argued that The Church at Pierce Creek had the right to run the Clinton ad in 1992 and shouldn't be punished.
Other historical examples include a 1960 sermon broadcast by a religious leader warning against voting for John F. Kennedy and a 1980 letter from a Catholic archbishop in Massachusetts urging Catholics not to vote for pro-choice congressional candidates. The article concluded: 'The restriction upon religious political speech adversely impacts a central conviction of religion's purpose: the ability to address issues germane to its moral code with the objective of influencing others.'
More recently, a number of evangelical pastors have endorsed Donald Trump from the pulpit. For instance, pastor Mark Burns is known as 'Donald Trump's Top Pastor,' and publicly supported the current president at RNC events and rallies.
Repealing the Johnson Amendment became one of Donald Trump's top priorities when he ran for presidential office in 2016. Speaking at the National Prayer Breakfast in 2017, he said he would 'totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.'
Although efforts to repeal the amendment through legislation ultimately failed, the administration announced a shift in enforcement through the latest filing. 'The administration is trying to signal that if other religious organizations also want to participate in politics, then the administration wouldn't go after their tax-exempt status,' Galle said.
Risk of 'dark money'
Regardless of whether the filing becomes law, tax policy and religious experts warn about potentially alarming implications of partisan politics entering the house of worship.
'If this is applied to all churches, it would be toxic for both churches and our politics,' Galle said. 'It would make essentially every church a dark money organization.' Unlike other 501(c)(3) nonprofits, churches are not required to file annual tax returns (Form 990) that disclose their donors or spending. Engaging in partisan political activity, Galle explained, could open a channel for wealthy individuals, including those with no religious affiliation, to funnel money into campaigns through churches, benefiting from tax-deductible donations and total financial opacity. 'That would give churches a major, unfair advantage in political messaging,' he said. 'And that's bad for our politics and bad for the integrity of churches themselves.'
Diane Yentel, president and CEO of the National Council of Nonprofits, expressed similar concerns. 'This action is not about religion or free speech,' she said in a statement, 'but about radically altering campaign finance laws.'
For religious communities, endorsements from the pulpit, whether local or national, risk dividing congregations and distracting houses of worship from their spiritual missions, Tyler said. Even further, it could fundamentally alter the church's purpose, she said. 'If they get engaged in partisan elections for candidates, we really could see that motivation is driving their mission, instead of their mission, their values and their beliefs really driving civic engagement in society,' Tyler said.
Public sentiment remains largely opposed to pulpit endorsements. In 2023, a survey found that 75% of Americans opposed churches endorsing candidates, while only 20% supported it.
Is the Johnson Amendment constitutional?
When the IRS revoked Pierce Creek's tax exempt status over the Clinton ad, the church challenged the decision and sought an injunction against the IRS. In 1999, the district judge ruled that the IRS did not violate constitutional rights and religious freedoms of the church and dismissed the church's claims.
But the question whether the Johnson Amendment is constitutional continues to percolate in the public debate. House Speaker Mike Johnson reiterated his view that this tax rule is unconstitutional and argued that the phrase 'separation of church and state' does not appear in the Constitution, but rather originates from a 1802 letter written by President Thomas Jefferson to a Baptist association.
While Brunson thinks churches should not be endorsing candidates, he believes that the constitutionality of the Johnson Amendment is 'shaky at best.' The Supreme Court has identified 'core political speech' — speech that directly addresses government, candidates and elections — as the most strongly protected type of speech, he said. 'That's the speech that the government faces the strictest limits on prohibiting,' Brunson said. 'So it seems like this blanket prohibition is probably at best deeply questionable.'
Brunson said ads placed in national or local newspapers aren't the kind of endorsements the IRS appears to be concerned about in the recent filing, which would be more like endorsements made during a sermon or within a church newsletter. Brunson argues the Johnson Amendment is sound and could be considered constitutional with some adjustments.
Tyler, however, remains firm that the law does not silence pastors. 'There is nothing that is stopping a pastor's speech,' she said. If the pastor feels they want to endorse a candidate from the pulpit, 'they can give up their 501 (c) (3) tax exemption.'
'Moral judgement' or 'partisan politicking'?
Still, politics often finds its way into church life, even without explicit endorsements.
Defenders of the Pierce Creek church argued that the Clinton ad highlighted the moral issues at stake of the election, and they viewed it as the church's duty to speak out on the moral qualifications of political candidates. 'The unfortunate result of the I.R.C. (Internal Revenue Code) restrictions is that no meaningful distinctions have been made between moral judgment and partisan politicking,' the 1997 Regent University Law Review article said.
Issues versus people — that's how Brunson articulated the appropriate line in addressing the questions of the day that may touch on politics. 'There's a difference between advocating on issues that align with your mission and endorsing a person,' he said. Faith communities also have a stake in local policy debates that directly affect their ability to operate, he said. 'Churches need to be able to protect themselves.'
Tax law generally permits churches to advocate on issues like zoning laws, housing policy or poverty, he said, as long as they don't cross the line into endorsing specific candidates.
Tyler also distinguishes between being political and being partisan as a church. 'I personally think that Jesus was political the way that he cared about the people and that he lived with and how he was working to change societies and structures,' she said.
Historically, churches have played an important but nonpartisan role in civic life: educating voters, helping people get to the polls, hosting forums and even serving as polling places, Tyler noted. 'The law really forbids partisanship,' Tyler emphasized. 'It doesn't forbid political engagement. There's so many ways to be politically engaged without being attached at the hip to a candidate or a particular party.'