Erik Stanley

It would seem the IRS should not be involved, and that’s true. But they entered the picture when Lyndon Johnson was running for re-election to the U.S. Senate in 1954. He was being opposed by two very powerful, secular, non-profit organizations that were distributing thousands of pieces of literature opposing his candidacy because they believed he was soft on communism. Johnson found a way to silence them by proposing an amendment to an existing tax bill pending before the Senate. The amendment, now known as the “Johnson Amendment,” prohibits non-profit organizations (including churches) from doing anything to support or oppose a candidate for office. The Johnson Amendment passed by a unanimous voice vote after Johnson greased the wheels for the amendment with the sponsor of the tax bill.

Although churches were not Johnson’s target when he introduced this legislation, it has been used against churches anyway because they happen to fit inside the definition of a non-profit organization.

Since 1954, the IRS has been tasked with enforcing the Johnson Amendment. And it has issued pronouncements on how it should be enforced that are so vague even lawyers like to argue over what they mean.

The IRS has gone so far as to say that churches cannot “directly or indirectly” participate in a campaign, yet the IRS refuses to define what “indirect participation” is. The IRS refuses to say with any certainty where the line is between what a pastor can and cannot say from the pulpit and instead says that it will “consider all the facts and circumstances” after the fact to determine whether the law was violated.

Basically, the IRS has committed itself to not advising pastors in advance what speech from the pulpit violates the tax code. It will only tell them after the fact whether what they said crossed the line.

In addition, groups like Americans United for Separation of Church and State threaten churches with reports of their behavior to the IRS and attempt to intimidate churches into silence by accusing them publicly of violating the tax code and risking an IRS audit of their churches.

The predictable result of this state of affairs is a massive and pervasive self-censorship among the pastorate when it comes to election season. Pastors chill their own speech and will refuse to comment on an election for fear of having to endure an IRS audit and the possible penalties if they are found after the fact to have crossed the line.

So what is a pastor to do if he feels that a choice between two candidates presents a stark moral choice? How can a pastor provide biblical instruction to his congregation on how to evaluate that moral choice in light of Scripture without running afoul of the IRS?

Federal law prohibits a pastor from filing a lawsuit in advance against the IRS to challenge the constitutionality of the Johnson Amendment. Instead, Congress, through its jurisdictional statutes, has told pastors that they must wait for the IRS to audit the church and issue a penalty against it before it can have standing to challenge the constitutionality of the IRS’s actions. So, most pastors continue to self-censor and feel that they have no way to exercise their constitutionally protected rights without risking IRS audits or penalties.

That is where Pulpit Freedom Sunday comes in. Many brave pastors are taking a stand and risking an IRS audit to protect their right and responsibility to provide biblical instruction to their congregations about the candidates running for office. If the IRS audits and then penalizes the church for what the pastor says from the pulpit, ADF will file suit against the IRS to have the IRS’ actions declared unconstitutional.

So, far from being an extreme approach, it’s the only avenue that Congress and the IRS have allowed for challenging the constitutionality of the law.

Many have said that they believe clergy should not endorse candidates from the pulpit. That is a legitimate discussion for the church to have, but it’s no business of the government, which should not be involved in establishing what is orthodox in religion in exchange for a tax-exemption that is the church’s by right anyway.

Pulpit Freedom Sunday is intended to restore the freedom of the pulpit and get the government out of playing “orthodoxy police” by telling a pastor what he can and cannot say in a sermon.

Erik Stanley

Erik Stanley is senior legal counsel, director of Church Project with Alliance Defending Freedom.