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?
For our first roundtable of the year, we have been asked to consider the constitutionality of the Johnson Amendment, which is often described as prohibiting charitable organizations (including churches) from endorsing political candidates. At first blush, this smacks of religious discrimination. How can a church be prohibited from saying whatever it wants? We are tempted to frame this as an example of the tension between free exercise and establishment. It seems that the government has limited the free exercise of churches so that it will not appear that they are supporting any particular faith.
However, it is important to note the details of the Johnson Amendment. The Johnson Amendment does not ban churches from endorsing political candidates. Neither does it in any way criminalize or punish churches that endorse political candidates. The Johnson Amendment is a part of Section 501(c)(3) of the tax code, which establishes that charitable organizations are exempt from taxation. The amendment, therefore, is a limit on that benefit. The government has decided that if you want the tax exemption that this section ofthe tax code provides, then you have to refrain from endorsing particular political candidates. The government's goal here is not to limit the speech or free exercise rights of charities and churches, but rather, to not tacitly subsidize advocacy for particular candidates. If a church or charity wants to endorse a particular political candidate they are free to do so. There is no criminal prohibition against such activity. However, they will lose the benefit of not having to pay taxes to the federal government. In essence, they will become just like any other non-charitable institution. If a church believes that it is their religious duty to support or oppose any particular candidate in an election cycle, the burden rest with them to decide whether the advocacy of a candidate or their balance sheet is more important to them. The fact that so many churches refrain from candidate advocacy strictly because of the tax benefit says more about the church than it does about the state of religious liberty.
I realize that some may argue that some churches would not be able to exist if not for the tax exemption. I do not doubt that this istrue. But it is important to note that churches do not have a right to the tax exemption, and the government has no duty to ensure that any church canfunction. Since at least 1983, the Supreme Court has considered the tax exemption given to charitable organizations a subsidy in the amount of the tax that would be paid. (Regan v. Taxation with Representation of Wash., 461 U.S. 540, 544 (1983).) In reference to the Johnson Amendment, Congress has simply refused to pay for a church's advocacy of a particular candidate. They are under no obligation to do so, and there is no argument "that First Amendment (Free Exercise) rights are somehow not fully realized unless they are subsidized by the State." (Id. at 546 (internal citations omitted).)
Churches that seek to demand a tax exemption while also advocating for particular candidates are seeking to receive a benefit from the government while also demanding the terms by which the government confer the benefit on them. At least presently, churches cannot have it both ways. They can either remain true to their conscience and pay taxes, or they can violate their conscience in order to save money. The Constitution is not required to solve this quandary for them by subsidizing their free exercise.
Author: Jason Hines
Jason Hines is Associate Editor for ReligiousLiberty.TV an independent religious liberty website. A Harvard Law graduate, Jason practiced commercial litigation in Philadelphia for five years and conducted seminars on religious liberty in his spare time. This gave him the opportunity to discuss issues of religious freedom with Adventists in churches all over the United States. In 2008, Jason decided to devote his life to work in religious liberty. To that end, he enrolled at the Seminary at Andrews University, where he is pursuing a Master’s Degree in Religion. He is also a PhD candidate in the Religion, Politics, and Society at the J.M. Dawson Institute for Church-State Studies at Baylor University. Jason blogs about religious liberty and other religious issues at thehinesight.blogspot.com.