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Response from Alan E. Brownstein

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?


This question relates to regulations conditioning the tax-exempt status of non-profits (including churches) on the organizations refraining from supporting or opposing political candidates. It is not a simple question to answer, but let me try to lay out the basic issues.

If we analyze the problem under the free speech clause of the First Amendment, the first issue is whether tax exemptions should be treated as regulations or as subsidies. This tax regulation discriminates on the basis of the content of speech. It prohibits speech endorsing or disfavoring candidates for office while permitting speech on most other subjects. Free speech doctrine requires the government to justify content-discriminatory speech regulations under strict scrutiny, a very rigorous standard of review. However, free speech doctrine generally allows the government to exercise unfettered discretion in deciding what subjects of speech it will subsidize. Thus, the government could decide to awards grants to landscape artists, jazz musicians, or history writers without violating the free speech clause. Current case law views tax exemptions as subsidies, not regulations. Thus, it does not violate the free speech clause if government discriminates against political speech in its subsidy programs.

If we analyze the problem under the religion clauses of the First Amendment, a different analysis applies. Under the Supreme Court’s holding in Employment Division v. Smith, religious individuals and institutions generally cannot assert a free exercise claim against neutral laws of general applicability – that is, laws that do not single out religion for discriminatory treatment. The tax regulation restricting speech endorsing or disfavoring political candidates applies across the board to all non-profits. It does not discriminate against religion. Accordingly, the regulation does not violate the Free Exercise Clause.

One might argue that the regulation supports government monitoring of religious institutions to determine if churches are complying with this mandate, and that this entanglement of the state and religious institutions violates the Establishment Clause. The argument has some persuasive force to it. If it were accepted, however, it would suggest that the regulation could be constitutionally applied to secular non-profits, but could not be constitutionally applied to religious non-profits.

This conclusion creates some tension with other free speech and Establishment Clause principles, however. For free speech purposes, while it is clear that government can exercise discretion when it subsidizes some subjects of speech and not others, it is not clear whether government can subsidize one viewpoint of speech and not the opposing viewpoint. Thus, for example, it is not clear that the government can subsidize right wing, but not left wing, speakers and messages.

Here the analysis gets particularly complicated. Government can subsidize one viewpoint and not another when it speaks with its own voice. (The government can support patriotic speakers on the Fourth of July without also subsidizing anti-American speakers.) What the Supreme Court has not decided yet, however, is whether the government can subsidize speakers expressing one point of view but not the opposing viewpoint when neither grantee is expressing the government’s own message. The case law is simply unclear on this question.

The speech being subsidized here through tax exemptions cannot be characterized as government speech. First, religious institutions do not speak for the government when they express religious messages. The government cannot take a position on what constitutes religious truth. Second, this is speech endorsing a political candidate. The government cannot use its resources and voice to support political candidates either. (When a mayor runs for re-election, for example, he cannot use municipal resources to finance his campaign.)

If the government cannot engage in viewpoint discrimination when it subsidizes speech other than its own, the only remaining question is whether subsidizing religious non-profits endorsing political candidates while denying similar tax-exemption subsidies to secular non-profits constitutes viewpoint discrimination. The problem here is that there is a long line of Supreme Court decisions, including most recently Good News Club v. Milford Central School (2001), that hold that religion is a viewpoint of speech. Thus, exempting churches from the general rule prohibiting non-profits from endorsing political candidates may conflict with free speech requirements.

Such an exemption may also violate other Establishment Clause principles. In those cases in which the Supreme Court has upheld indirect state subsidies (or vouchers) for religious institutions, such as Zelman v. Simmons-Harris (2002), it has insisted that the aid must be distributed under neutral criteria. The aid program cannot favor religious institutions over their secular counterparts. Similarly, in Texas Monthly v. Bullock (1989), the Supreme Court struck down a law that exempted religious publishers from a sales and use tax that secular publishers had to pay as a violation of the Establishment Clause. Thus, the Establishment Clause prohibits state aid that subsidizes religious, but not secular, institutions and messages. But that is exactly what happens if religious non-profits alone are exempt from the rule restricting political endorsements. The argument about monitoring and entanglement may support exempting religious institutions from the no political endorsement rule. But it is hard to reconcile this conclusion with other core Establishment Clause principles prohibiting government from favoring religious over secular institutions in subsidy programs.

Photo of Alan E. Brownstein

Author: Alan E. Brownstein

Alan E. Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law. While the primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, he has also written extensively on freedom of speech, privacy and autonomy rights, and other constitutional law subjects. His articles have been published in numerous academic journals, including the Stanford Law ReviewCornell Law Review,UCLA Law Review and ConstitutionalCommentary. In 2008, Liberty was privileged to recognize Professor Brownstein for his passion and dedication to religious freedom at its annual Religious Liberty Dinner in Washington, D.C.

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