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Response from Charles M. Kester

Discussion Question: Is The 1954 Johnson Amendment Constitutional?

In 1954 Congress passed the Johnson Amendment (prepared by Lyndon Johnson) which said that non-profits (including churches) could not speak in favor of political candidates. Is this constitutional?

As a lawyer with an active trial practice, I tend to answer questions such as this one with an eye towards cross-examination. That involves several often competing considerations, but one of the foremost among them is to make sure that one (1) answers the specific question that was asked, and (2) doesn't accidentally give an answer to a question that was not asked. With that thought in mind, I will confine my observations to the issue of political endorsements by churches, and will avoid comment on similar endorsements by the various species of non-profits, which range from other types of religious non-profits, to secular homeless shelters or soup kitchens, to the super-PACs that we are hearing about on the news. The legal issues with respect to churches are themselves complicated enough, without adding the additional "layers" of other non-profits, of which there are a myriad of types.

The legal issues involve a three-way interplay between the Establishment and Free Exercise Clauses of the First Amendment with the Free Speech Clause of that same amendment. The Johnson Amendment conditions a benefit (tax except status under IRC 501(c)(3)) upon self-censorship. At first blush, that might appear to violate the Free Speech and/or Free Exercise Clause. However, a remedy which removes this condition only for churches arguably violates the Establishment Clause. Those legal issues are by no means simple, but it seems to me that the real question is a slightly different one – should churches speak on behalf of political candidates? After all, it is not uncommon for church members to be seen handing out "voter guides" or discussing politics amongst themselves at church functions. In fact, a candidate could be endorsed from the pulpit if the church (through the applicable governing body) determined that the endorsement was "worth" losing the tax exemption. So why haven't they?

I think the answer, aside from purely practical concerns over whether donations to churches would decrease without the tax deduction, is that churches have no business speaking in favor of political candidates. When we go to church, we seek spiritual and not political instruction. In short, for that limited period of time we seek to serve God rather than "man" or Caesar, hopefully with the idea that this experience will affect our lives during the rest of the week. Efforts to use the pulpit to speak in favor of political candidates are little more than misguided attempts to thrust Caesar into a realm properly reserved for God. They are not any better merely because we may understand (and perhaps agree with) motives or morals of the speaker.

As it happens, I write from one of the "ground zeros" on this particular issue. A local pastor (Ronnie Floyd) created a media storm on this issue in 2004. His position trended decidedly toward the conservative end of the domestic political spectrum. I also attended Liberty University, which has a long history of soliciting speeches by conservative political heavy weights, notably including Newt Gingrich, who happened to be the speaker at my commencement ceremony. That message, and countless others like it have, to varying degrees, made clear that the speaker believed that Christians were "supposed" to vote for the Republican candidate. I found those exercises rather less than helpful to my spiritual development.

This concern about politicalization of the church has nothing to do with any particular political view. My life and practice has brought me into contact with numerous religious traditions. To even attempt to organize those traditions in terms of the American political system does a serious disservice both to those religious traditions and to our political process. However, in terms of domestic political discourse, pastors, preachers and priests should not advocate for any particular candidate – Democrat, Republican or other.

After graduating from Liberty University, I have also encountered numerous sermons with a more liberal political slant. I don't like them any better. Some years ago, I experienced my fifteen minutes of fame when the KKK mounted a demonstration a few yards from the church that I attend in Northwest Arkansas. With the help of some locals, we organized a counter-demonstration and wound up in the newspaper. In one of those articles, I was quoted as saying that "Jesus was a radical." That was an accurate quote (not all of them are), and I have thought about that statement over the intervening decade. I think what Jesus was a radical about was not Democratic or Republican politics, but how we relate to God. This is not a political issue, but a theological issue, and this theological issue – not any political one–deserves treatment from the pulpit.

In my small local church, I worship with Democrats, Republicans, independents, and the occasional far-right libertarian and far-left socialist. As shocking as this may sound, we worship the same God, and we say the same creed every time we meet. We don't go to church for political instruction. We go for spiritual sustenance and to maintain, and hopefully improve, our relationship with God. To hear a pastor's exhortation to vote for this or that candidate does nothing to foster or promote that relationship, and has no place in church.

The Johnson Amendment, which was prepared by the same Lyndon Johnson who was instrumental in the passage of the religious liberty protections that exist under Title VII of the Civil Rights Act of 1964, is consistent with this spiritual reality. Two of the four gospels (Mark 12:17 and Luke 20:25) recount Jesus' statement to the general effect that we should "Render unto God that which is God's, and render unto Caesar that which is Caesar's." There is no room for Caesar in the pulpit, and the Johnson Amendment is Caesar's tacit acknowledgement of God's prerogative.

Photo of Charles M. Kester

Author: Charles M. Kester

Managing Member, Kester Law Firm

Charles M. Kester is the managing member of the Kester Law Firm, with an active litigation practice in the areas of civil rights, labor and employment law, including religious discrimination and accommodation. He regularly appears before a wide range of state and federal agencies, as well as state and federal trial and appellate courts. Mr. Kester has published in legal journals and has lectured extensively on employment law issues in public and private employment. He is a member of numerous professional organizations and Bar Associations, including the National Employment Lawyers Association, and has served as an officer and Chair of the Labor and Employment Law Section of the Arkansas Bar Association. Mr. Kester served as lead trial and appellate counsel in Sturgill v. UPS, which was featured in the November/December 2006 and January/February 2009 editions of Liberty.

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