Trump Administration Bones The Johnson Amendment

In 2017, a newly elected President Trump promised faith leaders to remove a once-critical barrier in the separation of church and state.

“I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution,” he vowed at the National Prayer Breakfast just two weeks after his inauguration.

As with so many of his promises, that one went unkept. The Johnson Amendment, which bars churches from endorsing political candidates, is a federal law, so it can’t be “destroyed” by the President. And when congressional Republicans tried to sneak repeal of the Johnson Amendment into a budget reconciliation bill, the Senate parliamentarian nixed it.

But no matter! Because the Supreme Court’s conservatives have been working overtime to grant wishes to Christian conservatives. And with the help of a Trump-appointed district court judge in Texas, they might be able to leverage a largely-defunct lawsuit brought by two tiny churches to pull the Trump DOJ over the finish line.

Hey hey LBJ

Named for then-Senator Lyndon Johnson, the 1954 amendment to the Internal Revenue Code grants charitable organizations a special kind of tax-exempt status, wherein the organization’s revenues are untaxed, and its donors can deduct their contributions. Churches get to keep this “double dip” as long as “no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation … and which 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.”

That means — or should mean, anyway — that if either a secular charity or a church endorses a particular candidate for President, the organization will lose its tax-exempt status. But evangelical churches really, really wanted to endorse Republicans from the pulpit and keep all the goodies from being tax-exempt 501(c)(3) organizations. And so, they did.

Beginning in 2008, the Alliance Defending Freedom started organizing what it called “Pulpit Freedom Sundays,” encouraging pastors to publicly flout the law by endorsing specific candidates in their sermons.

For example, on May 15, 2022, Pastor (and January 6th insurrectionist) Greg Locke preached that Democrats were “baby-butchering election thieves” unwelcome in his house of god:

If you vote Democrat, I don’t even want you around this church. You can get out. You can get out, you demon. You can get out, you baby-butchering, election thief. You cannot be a Christian and vote Democrat in this nation. I don’t care how mad that makes you. You can get as pissed off as you want to. You cannot be a Christian and vote Democrat in this nation. You cannot be a Democrat and a Christian. You cannot. Somebody say “Amen.” The rest of you get out. Get out! Get out in the name of Jesus!

It’s difficult to imagine a more flagrant violation of a law prohibiting “opposition to any candidate for public office” than opposing literally every candidate of one political party. And the IRS did exactly nothing. Over the past 17 years, just one church has ever been investigated by the IRS for violating the Johnson Amendment, and there, too, the government declined to take any remedial action.

But even the tacit refusal to enforce the Johnson Amendment is not enough. The Christian right wants the law declared unconstitutional to allow it to be able to double dip and play politics, too. And so, as with so many rightwing causes, conservative activists went looking for a test case and a friendly judge to shop it to.

What Would Jesus Do Vote For

In August of 2024, National Religious Broadcasters, an “association of Christian communicators,” sued the IRS, claiming that the Johnson Amendment violates the First Amendment. NRB is headquartered in DC, but luckily it had a couple of Texas churches along for the ride, which is how National Religious Broadcasters v. Werfel wound up in the Eastern District of Texas in front of Judge J. Campbell Barker, a Trump appointee who authored an amicus brief in favor of the hate-baker in the Masterpiece Cakeshop case back when he was the Deputy Solicitor General of Texas.

District courts in Texas have become a sort of one-stop shop for conservatives seeking nationwide injunctions blocking everything from medication abortion to caps on credit card fees. But that plan hit a snag last week when the Supreme Court discovered that nationwide injunctions are actually illegal. Who knew?

The new rule magicked up by the Roberts Court makes it harder for judges to stop Trump from doing crazy, illegal stuff like banning birthright citizenship by executive fiat. But it also means that a victory in NRB v. Werfel can provide tax relief only as to the named plaintiffs. The demand for a declaratory judgment calling the Johnson Amendment unconstitutional and barring its enforcement nationwide is functionally DOA.

But when Sam Alito closes a door, he opens up a window… and pushes civil society out it

One of the reasons Christian conservatives are so loyal to Trump is that he has remade America’s courts by nominating judges willing to tear down the wall between church and state. In the past, it was understood that governments could not fund religious organizations without violating the First Amendment’s Establishment Clause. But the Supreme Court has increasingly turned this on its head, ruling that it violates the Free Exercise Clause to force churches to “choose” between their religious beliefs and receiving a government benefit.

In 2017, the Court ruled in Trinity Lutheran v. Comer that it was unconstitutional for the state of Missouri to pay to resurface public school playgrounds while refusing to extend those grants to parochial schools. Two weeks ago it held in Mahmoud v. Taylor that public schools must allow religious parents to yank their kids out of any classroom where the mere existence of LBGTQ+ people is acknowledged because “Public education is a public benefit, and the government cannot ‘condition’ its ‘availability’ on parents’ willingness to accept a burden on their religious exercise.” And so it is no coincidence that the NRB plaintiffs framed their case as one of poor, beleaguered religious organizations being forced to choose between exercising their First Amendment right to endorse political candidates and their 501(c)(3) tax status.

Meanwhile back in Tyler, Texas…

When the NRB plaintiffs filed they complaint in August, they clearly intended to tee up their case for the Fifth Circuit and then the Supreme Court as a vehicle to overturn the Johnson Amendment. Then Trump got elected, and they likely hoped that the DOJ would switch sides, perhaps entering into a consent decree for a nationwide injunction. But after CASA v. Trump, that’s off the table, and so the Trump administration did the next best thing.

On Monday it filed a joint motion with the plaintiffs asking Judge Barker to approve a consent judgment settling the case. So far, he’s stayed all deadlines to consider it.

In the motion, the DOJ very carefully picked its way around the issue of nationwide injunctions, agreeing only that “the Court has the power to provide the injunction with respect to the Plaintiffs requested by this Motion under the U.S. Constitution and the Judiciary Act of 1789.” Instead, it used the filing to announce that the IRS will henceforth interpret the Johnson Amendment as if it does not bar churches from making political endorsements.

The government begins by parsing the Merriam-Webster definitions of “participate” and “intervene” and — eureka! — concludes that endorsements from the pulpit are kosher after all.

Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services, do neither of those things, any more than does a family discussion concerning candidates. Thus, 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.

Then it commits a Cirque du Soleil-worthy act of historical contortionism by claiming that the Establishment Clause actually prohibits the government from “regulating” religious observance by denying it a government subsidy. The argument is that enforcing the Johnson Amendment (or any restriction on a church’s political speech whatsoever) is tantamount to preferring one religious denomination over another because it “treats religions that do not speak directly to matters of electoral politics more favorably than religions that do.”

Finally, it argues that the court is obliged to interpret the statute to avoid this glaring constitutional defect the DOJ and the ADF just made up: “The doctrine of constitutional avoidance counsels in favor of interpreting the Johnson Amendment so that it does not reach communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith.”

Because if they can’t repeal the law, and they can’t get a nationwide injunction, then BY GOD they are going to use the federal docket as a forum to dance around the open grave and invite the Supreme Court to toss that body in.

RIP separation of church and state.

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Liz Dye and Andrew Torrez produce the Law and Chaos Substack and podcast. You can subscribe to their Substack by clicking the logo: