IRS opens the door (slightly) to church political participation
In a proposed consent decree filed on July 7, the Internal Revenue Service asserted that under certain circumstances, the federal law that normally prohibits nonprofits from participating in or intervening in political campaigns does not apply to churches.
The federal law, often termed the “Johnson Amendment” after former president Lyndon Johnson who introduced the amendment, was added to the prohibitions of Section 501(c)(3) of the Internal Revenue Code in 1954. The law states that organizations exempt from federal income tax under Section 501(c)(3) cannot “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”
Since the Johnson Amendment’s addition to federal law, many have argued that its prohibitions, especially as applied to churches, are unconstitutional violations of the First Amendment’s protections of freedom of speech and freedom of religion.
One such challenge was brought in August of 2024 when the National Religious Broadcasters, along with two Texas churches, filed a suit in federal court in Texas against the IRS challenging the Johnson Amendment as unconstitutional. That lawsuit led to the proposed settlement agreement filed on July 7.
Under the proposed settlement agreement the IRS and the plaintiffs agreed that the IRS would not “enforce[e] the Johnson Amendment against Plaintiff Churches based on speech by a house of worship to its congregation in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.”
Many are touting this settlement as a win for churches. However, churches should be wary of adopting new policies based entirely on this proposed consent decree, for several reasons.
First, if the settlement agreement is accepted by the federal district court in Texas, it would only be enforceable as applied to the specific plaintiffs in that case (NRB and the two Texas churches). This would not be binding legal precedent for any other entity.
Second, the prohibition placed on the IRS from enforcing the Johnson Amendment against the plaintiffs comes with a dizzying number of qualifiers. Listed in order, the prohibition would only apply when the enforcement of the Johnson Amendment is:
based on speech
by a house of worship
to its congregation
in connection with religious services
through its customary channels of communication
on matters of faith
concerning electoral politics
viewed through the lens of religious faith
Although qualifiers 1 and 2 are relatively clear, others raise additional questions:
Regarding qualifiers 3 and 5, would this prohibition include a live stream of the church’s services, broadcast over the internet? Such speech would be to the congregation, but it would also be available to the public.
Regarding qualifier 6, who decides what is and is not a “matter of faith”? This could lead to further government entanglement in religious affairs.
Ambiguity remains surrounding the Johnson Amendment and its application to churches. On one hand, the IRS claimed in the settlement agreement that this understanding of the Johnson Amendment is nothing new and complies with President Trump’s Executive Order 13798 from 2017, which stated at Section 2 that:
In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.
However, official IRS guidance on the subject remains unchanged even after the settlement agreement, warning that churches are “absolutely prohibited” from participating or intervening in political campaigns. Ultimately, further litigation surrounding the Johnson Amendment’s reach into church sanctuaries should be expected.
For legal help regarding church political activities, contact our offices at (918) 392-1956 or through the Contact Us page.