A constitutional watchdog group may not defend the Johnson Amendment in litigation filed by religious groups seeking to promote political causes from the pulpit, a federal judge in Texas ruled.
Americans United for Separation of Church and State sought third-party status in the case after the Trump administration agreed to settle with religious groups seeking exemption from the law without losing tax-exempt status. The Biden administration sought to dismiss the 2024 lawsuit filed in the U.S. District Court for the Eastern District of Texas.
But U.S. District Judge J. Campbell Barker ruled in December that Americans United does not qualify for intervenor status because it is not directly affected by the proposed settlement between the Internal Revenue Service, which is the defendant, and the two religious groups and two churches that filed National Religious Broadcasters v. Long.
“The only parties with a direct, legally protectable interest in that transaction are plaintiffs, as the potential objects of enforcement, and the government, as the potential enforcer,” Barker said. “But if a secular nonprofit has an equal-protection challenge to its own anticipated treatment under the Johnson Amendment, that separate dispute as to a separate transaction can be litigated in an appropriate forum.”
“The only parties with a direct, legally protectable interest in that transaction are plaintiffs, as the potential objects of enforcement, and the government, as the potential enforcer.”
The 1954 Johnson Amendment altered the U.S. tax code to prevent 501(c)(3) organizations, including houses of worship, from taking partisan stands on political issues, endorsing candidates and political fundraising.
Conservative Christian groups long opposed to the law found an ally in President Donald Trump, who issued a first-term executive order limiting enforcement of the amendment. He repeated his opposition to the measure during his 2024 presidential campaign and has since vowed to repeal the law.
The need for the action is dubious, some say. The IRS “has been reluctant to enforce” the law and has revoked a church’s status only once in more than 70 years since its passage, according to Public Citizen. That was in 1992 when Branch Ministries in New York had its tax-exempt status revoked for taking out advertisements against Bill Clinton during the presidential election that year.
Nevertheless, National Religious Broadcasters, Intercessors for America and Texas congregations Sand Springs Church and First Baptist Church in Waskom sued the IRS arguing the amendment violates their freedom of speech and specifically targets conservative faith groups.
“The IRS has formally recognized the right of college newspapers (owned by colleges that are 501(c)(3) nonprofit organizations) to publish endorsements for political candidates,” the lawsuit states. “While plaintiffs contend that such newspapers should have such a right under the First Amendment, it is a denial of equal protection to interpret to allow college newspapers to endorse candidates while prohibiting nonprofits like plaintiffs from doing the same.”
After the federal government essentially switched sides in the matter under Trump, the IRS and plaintiffs in July submitted a consent judgment to Barker in which both agreed the Johnson Amendment violates the free speech rights of faith groups.
“When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participates’ nor ‘intervenes’ in a ‘political campaign,’” the settlement asserts.
While Barker has yet to rule on the proposed consent decree, its language allowing political speech in the context of church communications and worship has been viewed by some as a greenlight for churches to ignore the Johnson Amendment.
“The IRS’s latest interpretation of the Johnson Amendment allows pastors to speak to their congregations in certain religious contexts, which we should all celebrate,” according to Alliance Defending Freedom, an evangelical legal organization founded by more than two dozen conservative Christian leaders including James Dobson.
The amendment needs to be eliminated, ADF believes. What “happens if a president with a different interpretation of the Johnson Amendment is elected? Will the IRS reverse course and begin applying it more strictly against churches?”
Civil rights advocates, however, warned the proposed settlement, if approved, would undermine constitutional principles and treat secular nonprofits unfairly.
“The decree represents the parties’ attempt to eliminate the Johnson Amendment through litigation, improperly bypassing Congress,” Americans United argued in an amicus brief filed in November. “The proposed consent decree is unlawful, contrary to public policy and unreasonable. The decree raises serious constitutional concerns under the Establishment Clause, the Equal Protection Clause and the Separation of Powers doctrine.”
A bipartisan Congressional group affirmed its support for the Johnson Amendment in a Nov. 20 letter to acting IRS Commissioner Scott Bessent.
The legislators cited opposition to the settlement by other religious organizations and noted the right to worship freely already is protected by the Establishment and Free Exercise clauses of the First Amendment.
“Congress has repeatedly chosen to maintain the Johnson Amendment in statute, and we reject the notion that the IRS can unilaterally reinterpret 70 years of this settled law. We urge you to withdraw your proposed consent decree,” the letter urges.
Amanda Tyler
Amanda Tyler, executive director of Baptist Joint Committee for Religious Liberty, also urged protection of the Johnson Amendment.
“This long-standing provision safeguards both religious freedom and the integrity of the nonprofit sector by ensuring that tax-deductible charitable contributions are not diverted into political campaigns,” she said.
Tyler echoed growing concerns that approval of the settlement could pump so-called “dark money” from shadowy political networks into houses of worship. “Efforts to weaken or reinterpret the law, whether through Congress, state legislatures or the courts, threaten to inject money and division into sacred spaces,” she said.
Americans United President Rachel Laser said the campaign to allow politics into religious spaces is about much more than what pastors can or can’t say from the pulpit.
“Christian nationalists, with help from the Trump administration, are attempting to eviscerate the popular Johnson Amendment so they can misuse charitable donations for partisan political campaigns,” she said.
“Charitable giving should fund charitable work, not partisan politics. The proposal to exempt only plaintiff churches and not secular nonprofits would be unfair, unconstitutional and unhealthy for our democracy because it would allow churches to become unaccountable political action committees.”
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