The Unconstitutional Law that Has Threatened and Silenced Churches for More than 60 Years

Since 1954, anti-Christian organizations have relied on an unconstitutional law to keep Christians from speaking on the topic of politics. Pres. Trump has issued an Executive Order to dampen the effects of the 1954 law. His order does not actually nullify the law since it became law by an act of Congress. Congress or the Supreme Court will have to act to overturn the unconstitutional law.

An Executive Order is not law. A new President could reverse Trump’s order with his or her own order.

Presently, a great deal of authority resides with the Attorney General on implementation. Attorney General will most likely do what is within his authority to accomplish to reverse some of the devastating anti-freedom regulations put into place by former Pres. Obama. At best, this is a stop-gap measure since a new President with a new Attorney General could reverse the order.

The First Amendment does not restrict churches or its pastors from addressing political issues from a religious point of view. We got into this mess when in 1954 a law was rammed through Congress by then-Senator Lyndon Johnson to restrict nonprofit tax-exempt organizations from speaking freely on political issues. There is a long history in the America of churches addressing the issues of the day.

When the pastor delivered his message, the community at large was impacted by it. “On Sundays, ministers would be gospel heralds proclaiming the way of personal salvation through faith in Christ.” These same ministers would use weekdays, as the occasion required, to become “social guardians telling the nation who they were and what they must do to retain God’s special covenant interest.” There was duty involved in the Christian life. Preaching on the reality of sin and the promise of redemption had a broader relevance.

“Since all of society fell under the mastery of God’s Word, it was necessary that there be a provision for formal presentation of the Word at every significant event in the life of the community. More than any other custom or institution, the occasional sermon symbolized New England’s claim to peculiar peoplehood and proclaimed that in all events bearing on public life, God’s Word would be preeminent.”1

Election Day Sermons were often preached with elected officials present.

Johnson wanted his amendment pass because a nonprofit tax-exempt organization had attacked him during his campaign. Since non-profit organizations are creations of the government and regulated by the IRS, these organizations are limited by law on what they can say and do. Most churches are, like non-religious nonprofit tax-exempt organizations, listed as 501(c)(3) organizations and thus come under the strictures of the 1954 law. The thing of it is, churches are not the creation of government like government created and sanctioned non-profit organizations.

The 1954 law did not specifically include churches. Even so, the IRS lumps churches in with government-created tax-exempt non-profits:

“The ban on political campaign activity by charities and churches was created by Congress more than a half century ago. The Internal Revenue Service administers the tax laws written by Congress and has enforcement authority over tax-exempt organizations. Here is some background information on the political campaign activity ban and the latest IRS enforcement statistics regarding its administration of this congressional ban.
“In 1954, Congress approved an amendment by Sen. Lyndon Johnson to prohibit 501(c)(3) organizations, which includes charities and churches, from engaging in any political campaign activity. To the extent Congress has revisited the ban over the years, it has in fact strengthened the ban. The most recent change came in 1987 when Congress amended the language to clarify that the prohibition also applies to statements opposing candidates.”

This so-called ban is a direct violation of the First Amendment. In 1954, Congress made a law that resulted in prohibiting churches from speaking out on political issues and endorsing candidates. As a result, “‘the infamous Johnson Amendment has dangled like a sword above the heads of pastors and ministry leaders, chilling their constitutional free speech rights,’ NRB President and CEO Jerry Johnson said in a statement. ‘The Free Speech Fairness Act is a fair and reasonable remedy that will ensure such leaders know they can speak as they feel called without having to worry about the heavy hand of the IRS coming down on them.” (Newsweek)

Some pastors like the Johnson Amendment since it gives them cover from having to address the issues of the day from the pulpit. I’ve heard them say, “I can’t address the topics of abortion, taxes, same-sexuality in their political contexts since I’m prohibited by law. Our church could lose its tax-exempt status.”

The Alliance Defending Freedom, a Christian legal advocacy group, has been encouraging churches to defy the unconstitutional law. If the IRS or any other government agency threatens a church or pastor because of their political activities, ADF will come to their defense:

“In response to more than 50 years of threats and intimidation by activist groups wielding the Johnson Amendment as a sword against the Church, ADF began the Pulpit Initiative in 2008. The goal of the Pulpit Initiative is simple: have the Johnson Amendment declared unconstitutional — and once and for all remove the ability of the IRS to censor what a pastor says from the pulpit.

“ADF is actively seeking to represent churches or pastors who are under investigation by the IRS for violating the Johnson Amendment by preaching biblical Truth in a way that expresses support for — or opposition to — political candidates. ADF represents all of its clients free of charge.”

Americans United for Separation of Church and State “reported a Roman Catholic Church in El Paso, Texas, to the Internal Revenue Service after the church allegedly ran a notice in its bulletin that encouraged parishioners not to vote for President Barack Obama” when he was running for office.

Barry W. Lynn, executive director of Americans United for Separation of Church and State, tried to intimidate church officials by claiming “federal law prohibits tax-exempt, non-profit organizations (including houses of worship) from intervening in elections like this.” By citing “federal law” instead of the First Amendment, Lynn is engaged in a bit of legal sleight of hand.

The First Amendment does not prohibit churches from speaking out on any issue including political ones, even if they are tax exempt. The amendment is so clear that liberals almost never cite it:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Notice it does not say, “except for pastors and their churches.”

Rob Boston, Assistant Director of Communications for Americans United for Separation of Church and State and Assistant Editor of Church & State magazine, engages in similar constitutional fiction: “A church cannot link or direct people to an organization telling people how to vote… All nonprofits, including churches, cannot endorse or oppose candidates.”

The First Amendment gives everyone, churches included since there are no exceptions listed, the right to speak about religion, write about religion, congregate about religion, and “petition the government for a redress of grievances.”

Intimidating churches has been going on for a long time. Lynn has been monitoring the content of Sunday sermons since 2004. If these self-appointed snitches don’t like what they hear, that is, if what a pastor says is “too political” and contrary to their liberal political agenda, they will send video and audio tapes to the IRS for investigation. If enough churches challenged the supposed prohibitions, the IRS wouldn’t know what to do. At the present time, the fear factor has been enough to keep churches in check and silent, unless those churches were predominately black.

  1. Harry S. Stout, The New England Soul: Preaching and Religious Culture in Colonial New England (New York: Oxford University Press, 1986), 27. []
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