How this lawsuit against the IRS aims to allow churches a greater role in politics

A high-profile group of Christian organizations, including the National Religious Broadcasters, have filed a lawsuit against the Internal Revenue Service challenging a key legal precedent that limits the amount of political influence a nonprofit organization can wield.

The rule, introduced by former President Lyndon B. Johnson in 1954, bans all tax-exempt organizations like churches and charities from “directly or indirectly” participating in politics, specifically in endorsement or opposition of candidates. It has become known as the Johnson Amendment.

The lawsuit was filed in Texas on behalf of the National Religious Broadcasters, an international association of evangelical, conservative communicators, as well as Intercessors for America, a conservative Christian prayer advocacy group, and two Texas churches, First Baptist Church Waskom in Waskom, Texas, and Sand Springs Church in Athens, Texas.

In a statement, the NRB stated that while the plaintiffs are not seeking a ruling before the 2024 presidential election, the groups feel that their speech has been “wrongfully silenced” under the Johnson Amendment.

“For too long, churches have been instructed to remain silent on pressing matters of conscience and conviction during election season or risk their 501(c)(3) status,” NRB President and CEO Troy Miller said. “We believe that all nonprofits should have the constitutional right to freely express their point of view on candidates, elections, and issues on the ballot. Our challenge to the Johnson Amendment is about securing the future of free expression for all Americans, particularly those standing in the pulpit.”

The lawsuit calls the classification of churches as unable to speak about political candidates “discriminatory,” and argues the IRS specifically targets conservative organizations under the law, causing a chilling affect to their speech.

“The IRS operates in a manner that disfavors conservative organizations and conservative, religious organizations in its enforcement of § 501(c)(3),” the lawsuit contends. “This is a denial of both religious freedom and equal protection.”

The complaint explicitly says the plaintiffs are not seeking lobbying rights or the right to make political donations: only the right to engage in more political speech.

The filing also claims that “hundreds of newspapers” organized under 501(c)(3) code can endorse political candidates.

“Plaintiffs believe that nonprofit newspapers have a clear constitutional right to make such endorsements or statements,” the lawsuit reads. “Plaintiffs simply contend that they should also have the same freedom of speech.”

According to the Neiman Lab guide for nonprofit newspapers, papers organized under 501(c)(3) status cannot run "editorial page-style endorsements."

Lawsuit could have wide impacts

Jennifer Safstrom, a law professor at the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, said the issue at the heart of this case is a common one: money.

"For organizations who are under 501(c)(3) status, which is a standard nonprofit, there are benefits like the ability for donors to deduct their contributions from their taxes," she said. "But one of the downsides, and what's being challenged here, is the ability to then engage in political activism under that categorization."

Although the IRS often sets churches to 501(c)(3) status as default tax status, Safstrom said, based on her reading of the law, churches in the complaint would likely receive the political benefits they are seeking if they switched registration to 501(c)(4) — but the move would mean losing their tax benefits.

If the groups are hoping to engage in more political speech without changing tax code, however, Safstrom said previous case law does not lean in their favor.

She pointed to the U.S. Supreme Court case Bob Jones University v. United States in 1983, which saw the South Carolina university challenge the United States after its tax-exempt status was revoked.

The revocation came after the IRS found that the "fundamentalist Christian school" had prohibitions against interracial dating and marriage. The IRS contended that the organization could not be tax-exempt and still participate in discriminatory activities. The university claimed this assertion was violating their First Amendment rights.

The Supreme Court disagreed. In an 8-1 ruling, the court found the school did not meet the tax-exemption requirements placed on 501(c)(3) organizations, and could not due to their discriminatory policies. The Court declared that racial discrimination in education violated a "fundamental national public policy," and that the government may justify limitations on religious liberty by showing it is required for "overriding governmental interest" because "not all burdens on religion are unconstitutional."

"I think the Johnson Amendment has been the framework for organizational setup for so long that's its hard to know how far a change to the code would go," she said. "I think what you would see is an influx of political speech by nonprofit entities. ...This has the potential to change a lot of what we know about the Johnson Amendment."

In 2022, the Americans United for the Separation of Church and State sent a letter to the IRS urging the agency to investigate Mt. Juliet pastor Greg Locke, who repeatedly stated on a livestream from his pulpit at Global Vision Bible Church that “you cannot be a Christian and vote Democrat in this nation” and “If you vote Democrat, I don’t even want you around this church. You can get out,” in direct violation of the Johnson Amendment.

In an official statement in response to the recent lawsuit, Americans United said the case is "an audacious gambit that should be swiftly rejected."

"The law in question, known as the Johnson Amendment, protects the integrity of our elections by ensuring that tax-exempt organizations stay focused on their missions, which is usually charitable, spiritual or public policy work, not partisan politics," the statement read. "If the churches in Texas and the NRB, which has espoused Christian Nationalist views, want to engage in partisan politics, there are appropriate vehicles for that. Allowing tax-exempt entities to jump into partisan electioneering, and even funnel money to candidates, would create a huge loophole in our nation’s campaign finance laws."

Johnson Amendment a growing topic as election heats up

A 2017 Pew Research poll found that while Americans are nearly split on whether religious institutions should express political views, a heavy, bipartisan majority are against such organizations endorsing candidates.

Despite this, the Johnson Amendment has become a frequent target of conservatives in recent years, with former President Donald Trump promising to “totally destroy” it at a Feb. 2, 2017 National Prayer Breakfast event, an echo of a 2015 campaign promise he made.

Although Trump did issue an executive order shortly following the statement, the order did not change the current standing of the law, but rather reaffirmed the Johnson Amendment in friendlier language. A formal repeal of the amendment was included in a House of Representatives tax reform bill in December 2017, but was removed during a reconciliation process with the Senate.

Trump remained largely silent on the matter in the recent election cycle, barring a May 2023 episode of FlashPoint, a Texas-based, far-right evangelical television show hosted on a channel run by megachurch televangelist Kenneth Copeland, in which he promised to repeal it once more.

On the show, Trump reamed the Johnson Amendment, and took credit for the IRS’s lack enforcement of the law under his administration.

“We never enforced it. We essentially ended it,” he said, later adding “I wasn’t able to finish it. But I’ll finish it this time.”

Trump’s defiance of the legal precedent is popular among his base: since 2008, more than 2,000 pastors across the country have held an annual “Pulpit Freedom Sunday,” for the purpose of intentionally violating the restrictions in the law to provoke the IRS. The event was created by the conservative Christian legal group Alliance Defending Freedom, an active lobbying group in Tennessee politics and adviser to the Heritage Foundation’s Project 2025.

As the 2024 election cycle hears up, influential conservative Christian speakers are getting involved in the push against the Johnson Amendment as well: evangelical Christian “apostle” Lance Wallnau and conservative education nonprofit Turning Point USA founder Charlie Kirk are currently on a multi-state tour that aims to embolden conservative churches to become more involved in politics, despite the Johnson Amendment. The effort is mostly focused on the swing states of Arizona, Wisconsin, and Georgia.

The USA TODAY Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.

Have a story to tell? Reach Angele Latham by email at alatham@gannett.com, by phone at 931-623-9485, or follow her on Twitter at @angele_latham

This article originally appeared on Nashville Tennessean: Texas religious groups file lawsuit against IRS to blur line between church and politics