A Summary of Yesterday's Debate on the Johnson Amendment at the National Press Club

"It was a surprisingly good debate.  The participants were all well-prepared and did a solid job of articulating their perspectives, the give-and-take was lively and direct, and the audience questions at the end were sharp and thoughtful.  And there were some surprising concessions by both sides: the pro-Johnson Amendment crowd admitted that if the IRS could condition free speech and free exercise rights on receiving a tax exemption, then it could condition it on almost anything else.  Like requiring a church to accept same-sex marriage, or push some pre-ordained government agenda.  Which was a rather chilling thought.  And the anti-JA side coughed up something of a middle ground...[# More #] ...at least on the part of Prof. Laycock: if the IRS would allow churches to campaign like they can already lobby (which is up to 15% or so of the church’s annual costs and time commitments), then 501(c)(3) could be saved constitutionally.  While that wouldn’t be the total victory many on the side of religious liberty are looking for, it would be a substantial improvement—pastor who would want to preach on candidates would be able to do so 2-3 times a year under that proposed rule.

                Some other nuggets:

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Ben Bull noted that there’s something inherently wrong with a law that was written by politicians to protect politicians from moral criticism.  He also pointed out that the IRS itself doesn’t know what the rule is regarding what churches can and can’t do under the Johnson amendment, creating a severe chill on First Amendment rights.  And he noted the inconsistency of a law that allows pastors to endorse a candidate on CNN, but not say the same words to the congregation that looks to him for guidance.

Barry Lynn argued that the JA is “just right” and that most pastors both like and understand how the JA applies (I guess all those pastors who called me this past election season worrying about accidentally stepping over the line were from the minority).  He also noted that his organization regularly tattles on churches who step over the line. And, while he believes that the IRS cuts churches too much slack, he’s “glad that some churches have been penalized.”

Douglas Laycock noted that the JA has nothing to do with separation of church and state.  He also was firm that a pastor’s sermon to his congregation on political issues from a religious/moral perspective was pretty much the most protected form of speech under the First Amendment, since it stood at the crossroads of the Free Speech and Free Exercise of Religion protections.

Donald Tobin argued that tax exemption is a benefit that Congress doesn’t have to provide (since everyone’s money is really the government’s and whatever it doesn’t take is a gift, I suppose).  He was sympathetic to Laycock’s observation that sermons should receive core First Amendment protection, but believed that allowing a special exception for churches would violate the Establishment Clause.  He also mentioned that he thinks ADF is on good footing for the Pulpit Initiative, since the law is not clear.  In fact, he characterized the JA as “a mess,” which everyone but Lynn agreed with."

Thanks, Daniel!