Erik Stanley

Just as with those other rights, free speech is a constitutionally protected freedom, not a privilege that the government can grant or revoke while dangling the tax-exempt status of the speaker’s church over his head. That’s why the IRS rule against free speech for pastors should be struck down as unconstitutional.

Another straw-man claim that has been put forth is that Congress created the Johnson Amendment to ensure that churches don’t get a subsidy for political activity. First of all, as is well documented, this is not why Congress created the rule. Then-Senator Lyndon Johnson introduced the rule without debate and got it passed in 1954 with little notice as a means to silence non-profit groups that opposed his bid for re-election. Neither he nor Congress had any intention of applying the rule to churches to silence their religious speech, no matter how much groups like Americans United for Separation of Church and State and the Freedom From Religion Foundation would love for people to believe otherwise.

Secondly, the federal government does not “subsidize” religion when the IRS grants a tax-exempt status to a church. In fact, tax exemption cannot be not a government subsidy unless you believe that no one can actually have their own money and that it all belongs to the government—an idea that the U.S. Supreme Court rejected just last year.

It’s not the case that the church has a bunch of the government’s money and must justify why the government can’t demand it back. No, the government has a duty to justify why it must take money that belongs to its citizens.

And since churches, like most charities, are non-profits that have been outside of the government’s legitimate tax base since the founding of the nation, the government has no automatic right to the church’s money just because its pastor won’t give up his constitutionally protected right to free speech.

Some point to the deduction individuals receive for their church contributions as a “benefit” that justifies suppressing the free speech and freedom of religion of churches. But individuals can also claim a deduction for contributions to other tax-exempt groups, such as veterans’ organizations, who are not subject to the Johnson Amendment. Why should churches be treated any differently?

Some cynics and conspiracy theorists like to point to a handful of church excesses and demand that all churches be burdened with taxes. But that doesn’t wash either. The vast majority of churches are far from “wealthy” and do tremendous good for their communities—often relieving the government and taxpayers of having to provide a whole host of community services. And that’s just one reason why the government has never done taxpayers and all citizens the disservice of taxing churches and charities. Reducing their ability to do good does no one any good whatsoever.

Most troubling of all is the ease with which some who oppose Pulpit Freedom Sunday like to cite the so-called “separation of church and state” while at the same time advocating that the state regulate the speech of the church. No, as America’s founders would have agreed, a pastor is the one who should determine what he says from the pulpit, not the federal government—and that is as it should be.

Erik Stanley

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