Churches’ Responses to New IRS Position on Johnson Amendment and Houses of Worship

Yesterday, the New York Times had this article about the fall-out from the IRS’s latest statement regarding enforcement of the Johnson Amendment against religious services. 

According to the article, many Christian denominations (such as the Evangelical Lutheran Church in America) remain opposed to political activity, viewing entanglement with politics as undermining their effectiveness and commitment to religious worship, even as others (such as the Southern Baptist Convention) appeared to gear up to engage in political speech more freely. Meanwhile, the Interfaith Alliance and others led a coalition of 1000 nonprofits signing onto a letter defending full application of the Johnson Amendment.

As previously covered on this blog and elsewhere, the IRS agreed to settle a lawsuit challenging the application of the Johnson Amendment to houses of worship last month by consenting to a permanent injunction not to enforce the Johnson Amendment against the 2 church plaintiffs (Sand Springs Church and First Baptist Church Waskom) for political endorsements made in connection with religious services. Although the order applies only to the 2 churches, the proposed consent decree includes the broader, but non-binding, pronouncement 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,” which “is in keeping with the IRS’s treatment of the Johnson Amendment in practice.” (But see https://www.irs.gov/newsroom/charities-churches-and-politics and https://www.irs.gov/pub/newsroom/branch_ministries.pdf). The Court has not yet issued the proposed consent decree, as other groups have sought to intervene or file amici briefs. 

The full docket of National Religious Broadcasters v. Long is available here. 

Some of the amici briefs filed to date in support of the Johnson Amendment:

• Americans United
• Campaign Legal Center, Public Citizen, and Common Cause

Some of the amici briefs filed in support of the plaintiffs’ challenging the Johnson Amendment:

• Cornerstone Chapel
• Institute for Free Speech
• Liberty Counsel

For more commentary, see, e.g.,: 

• Ellen P. Aprill, Misunderstanding National Religious Broadcasters, Tax Notes. 
• Darryll K. Jones, The entire debate is premised on shaky assumptions, Jonesing for Nonprofits
• Darryll K. Jones, A Worship Exemption to the Johnson Amendment Will Lead to The Pimping of Organized Worshippers, Jonesing for Nonprofits
• Darryll K. Jones, Will the IRS Johnson Amendment Concession Lead to Politicians “Prowling the Pews”?
• Lloyd Mayer, IRS says churches may endorse political candidates despite a decades-old federal statute barring them from doing that, The Conversation
• George Takagi, Churches and Electioneering, Nonprofit Law Blog.

-Joseph Mead