The Debate about the Johnson Amendment

Jesuit Father Thomas Reese recently wrote an interesting article in NCR reacting to President Trump's repeated promise to his supporters in the Religious Right to repeal the so-called "Johnson Amendment," the 1954 legislation prohibiting all (not just Churches) non-profit, tax-exempt organizations - 501(c)(3) - from endorsing, campaigning for, or contributing to candidates for public office. (See "Repealing the Johnson Amendment:legal and ecclesiological problems," https://www.ncronline.org/blogs/faith-and-justice/repealing-johnson-amendment-legal-and-ecclesiological-problems.)

Personally, this rule has always seemed to me to be a reasonable requirement on the government's part in return for granting non-profits the privilege of tax-exemption. Non-profit , voluntary organizations (both religious and non-religious) don't claim tax-exemption by right but by virtue of the tax code which grants this exemption, because of a traditional consensus that such organizations represent an important and valued part of a vibrant civil society and out of a desire to encourage citizens to contribute to such voluntary organizations. 

Of course, Saint Paul instructed the Christians in 1st-century Rome: Pay to all what is due them—taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due, honor to whom honor is due (Romans 13:7). But it is obviously advantageous to the contemporary Church's mission - as an institution which, among other things, owns considerable property, for which it could ill afford to have pay property taxes - to be freed from this burden.

Regarding the notion that threatening to revoke tax-exemption threatens freedom of religion, Reese cites the 2000 Court of Appeals case Branch Ministries v. Rossotti, in which the Court argued: Plaintiffs were offered a choice: they could engage in partisan political activity and forfeit their Section 501(c)(3) status or they could refrain from partisan political activity and retain their Section 501(c)(3) status. That choice is unconnected to plaintiffs’ ability to freely exercise their religion. Plaintiffs therefore have not demonstrated that the IRS substantially burdened their free exercise of religion.

Of course, a future court could rule differently, but the fact is no one can count on an eventual ruling that taking away tax-exemption would violate religious freedom. It certainly would adversely affect Churches financially, but that is not the same as taking away religious freedom. And, in any case, in American constitutional law and history religious freedom has been no more absolute, de facto, than any other right. American jurisprudence has historically balanced religious freedom claims  against other social and civic values. 

For a country where there is already too much money in politics, Reese rightly points out the dangers to society from permitting non-profits to contribute to political campaigns. As for the Churches themselves, especially the Catholic Church in the United States, he also highlights the internal ecclesial damage such increased political activity might cause. He nots that American Catholics "are almost evenly split between Republicans and Democrats" and that "political endorsements could irreparably divide the Church."

What Reese does not mention, but which to my mind ought to be quite critical to this discussion, rather than any presumed threat to religious freedom from the Johnson Amendment and the present state of the law is rather the potential danger to religious freedom to which repeal of the Johnson Amendment and increased partisan involvement might conceivably expose Churches.

As I have noted previously, the continued effective exercise of any constitutionally guaranteed right depends upon a certain degree of social consensus about the meaning and extent of that right - and its impact on other also valued rights. Even more obviously, tax exemption depends upon a certain degree of social consensus about the public value of the activities in which tax exempt organizations engage, in this instance a long-standing consensus that the presence and free activity of Churches and religious organizations is of benefit to society. But that consensus may well be diminishing - especially among younger voters, some of whom may perceive religious institutions as obstacles to the full exercise of other rights which society now increasingly values. It is at least arguable that increased involvement on the part of Churches in right-wing politics (the presumed goal of President Trump's promise to repeal the Johnson Amendment) would further alienate  younger (and increasingly less religious) voters, thus further diminishing the social consensus supporting not just tax exemption but expansive religious freedom claims in general. This would be a disaster for all religions in the United States and for American society as a whole.