Divine Endorsements

September/October 2025

Faith, politics, and the future of the Johnson Amendment

In Texas’s fiercely contested 1948 Democratic Senate primary, Lyndon B. Johnson emerged victorious by just 87 votes—a razor-thin margin that earned him the ironic moniker “Landslide Lyndon.” The result drew intense scrutiny amid allegations of voter fraud, most notably surrounding the notorious “Box 13” in Jim Wells County, where hundreds of late-counted ballots tipped the race in Johnson’s favor. His win was ultimately certified, and Johnson went on to claim the Senate seat in the general election.

Facing reelection in 1954, Johnson proposed an amendment to the tax code that in hindsight seemed aimed directly at his political opponents, who had been rallying public opinion against him in venues across Texas, including churches. The amendment—a provision banning tax-exempt nonprofits from endorsing political candidates—was uncontroversial. It passed on a voice vote without debate.

In the seven decades since its uneventful passage by Congress, the Johnson Amendment has generated a tangle of myths, misconceptions, and bitter disagreements.

Critics argue that it unconstitutionally muzzles clergy and faith-based organizations, denying them the right to speak openly on political issues.

Supporters counter that its scope is limited and that, moreover, it’s a reasonable condition that applies equally to secular and religious nonprofits in exchange for the sizable benefits that tax exemption brings.

In July the debate intensified when the Internal Revenue Service agreed to limit enforcement of the Johnson Amendment as part of a proposed settlement to a lawsuit whose plaintiffs included two Texas churches. Under the proposed agreement, the IRS said it wouldn’t pursue violations if pastors of these churches endorsed candidates or addressed electoral issues during worship services, provided such remarks were framed as expressions of faith and directed exclusively to their congregations.

There’s been little consensus in the media on what this proposed carve-out means for the fate of the Johnson Amendment. Does it mark a seismic shift in how far American houses of worship can engage in political speech without risking their tax-exempt status? Or is it a narrow exception with limited implications?

There are important policy questions at stake as well. How would greater partisan involvement by houses of worship change American politics? Or American faith? Is a closer relationship between religious groups and political parties in line with our country’s constitutional values?

To explore these questions, Liberty magazine editor Bettina Krause spoke with two leading academics. Professor Samuel D. Brunson is associate dean for academic affairs and the Georgia Reithal Professor of Law at Loyola University Chicago. He’s a nationally known scholar of federal income taxation and nonprofit law, with particular expertise in the intersection of religion and the tax system.

And Professor Randall Balmer is an author, scholar, and prize-­winning historian of American religion who holds the John Phillips Chair in Religion at Dartmouth College, New Hampshire. He’s the author of more than a dozen books, his most recent being America’s Best Idea: The Separation of Church and State (Steerforth Press, 2025).¹

Interview with tax law scholar Samuel Brunson

Bettina Krause: There’s been clear confusion recently in the media about the Johnson Amendment and tax exemption generally. Can you walk us through the basics?

Samuel Brunson: The Johnson Amendment is an addition to Section 501(c)(3) of the Internal Revenue Code. This is the section of the code that outlines criteria an organization needs to meet to qualify as tax-exempt—in other words, to qualify to not pay taxes and to accept tax-deductible donations. For instance, you have to be a religious or charitable or educational institution, and there’s a handful of other types as well. You can’t share your profits with investors or anybody else. And then, you can’t substantially engage in politics.

Krause: What does “substantially” mean?

Brunson: Well, a tax-exempt organization such as the Seventh-day Adventist Church, for example, can engage in politics. If a community passed a law, having a mandatory Sunday closure of businesses and mandatory Saturday opening, the Adventist Church could lobby against it because it’s going to hurt members who are business owners or who want to participate in weekend shopping. So as long as that’s not a substantial part of the church’s activities, it can do that. But lobbying can’t be the church’s primary activity.

Then you have the Johnson Amendment, which comes in on top of this and says that no tax-exempt organization can endorse or oppose candidates for office. So in theory, if the Adventist Church or my church, the Mormon Church, or my employer, Loyola University Chicago, or any other tax-exempt organization endorsed or opposed a candidate for political office, then legally they should lose their tax exemption.

Krause: Broadly, what’s the rationale for placing any kind of restrictions on nonprofits?

Brunson: If you can call your organization tax-exempt, there are many benefits it can get potentially at the expense of society.

For instance, corporate taxes right now are 21 percent. So if my university gets $100,000 of tuition from students, as a tax-exempt educational institution it keeps that whole $100,000. But a for-profit university, on the other hand, gets $100,000, pays $21,000 in taxes, and has $79,000 after taxes. Now, that may or may not be a subsidy. I’ve argued that it’s not, but either way, it’s a significant benefit.

But an even bigger benefit is the ability to accept tax-­deductible donations. If I give $10,000 to my church and I’m in, say, the 24-percent tax bracket, I can deduct that $10,000. And since I’m in the 24-percent tax bracket, that reduces my taxes by $2,400. So after taxes my $10,000 donation costs me only $7,600, and the government makes up the other money by forgoing revenue. And that represents a real advantage and a real benefit to tax-exempt organizations. Because a tax-exempt organization is not paying taxes, and because it’s being subsidized, this reduces the tax base, which makes everyone else pay more in taxes.

So we want some guidelines, fence posts, around what qualifies as tax-exempt, because we don’t want everyone to be tax-exempt.

Krause: The Johnson Amendment is one of these “fence posts.” But it’s one that some—especially faith-based institutions—have chafed against.

Brunson: There have been attempted legal challenges to the Johnson Amendment over the past 15 or 20 years. But the problem is that the amendment is really, really hard to challenge in court. A church that wants to challenge the Johnson Amendment doesn’t have legal standing to do so until they’ve either been denied exemption or their exemption is revoked by virtue of violating the Johnson Amendment. And the one thing the IRS has studiously done over the years is not revoke anyone’s exemption!

As far as I can tell, during the past 70 years exactly one church has lost its tax exemption for violating the Johnson Amendment. In the 1992 presidential election a church called Branch Ministries took out full-page ads in USA Today and another national newspaper against Bill Clinton. Their tax exemption was revoked, and the D.C. Court of Appeals upheld the actions of the IRS as constitutional. That was 30 years ago; I’m not sure that this case would come out the same way today.

Krause: So that’s the background. What has led us to this year’s proposed IRS settlement that addresses enforcement of the Johnson Amendment?

Brunson: Last year, two religious organizations and two churches filed suit against the IRS, saying the Johnson Amendment is unconstitutional. Now, the government could have asked the court to throw this suit out because these religious groups had no legal standing to bring it—there’s no allegation the IRS revoked their exemptions or attempted to revoke their exemptions.

But then, at the beginning of this year, there was change in administration. And the new administration came in and said, “You know what? Let’s settle.”

The government and these churches said to the court, “We want you to file an order saying that the Johnson Amendment will not now, or under any future administration, be enforceable against these plaintiffs.”

If the court says yes to this agreement,² it will protect these two specific churches in Texas. It doesn’t protect the Adventist Church. It doesn’t protect my church. It doesn’t protect the Catholic Church. It only substantively protects these two plaintiff churches.

And it doesn’t really represent a change in policy either, because until now, neither Republican nor Democratic administrations have been enforcing the Johnson Amendment.

Krause: What specifically does the proposed settlement provide?

Brunson: Under the settlement, these two churches could endorse and oppose candidates for office “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.” Now, there’s some ambiguity to that, but it doesn’t seem like it would protect taking out a half-page ad against Harris or Trump in a major newspaper. But it would definitely protect them if the pastor says in a sermon, “You should vote for city council person X.” It probably covers an email newsletter, for instance, that the church sends to its members. But the endorsement must take place through the church’s “customary channels of communication on matters of faith.”

Krause: Even though this settlement applies only to the two Texas churches named in the suit, doesn’t it give a wink and nod to every other church or religious group in America that wants to get more involved in partisan politics?

Brunson: Well, it represents the first time that the IRS has said out loud, “We think that it’s OK for churches to endorse candidates.” So that does send a message.

But if you are a small “c” conservative church, and if you’re risk-averse, you’re not going to use this proposed settlement as a reason to change your behavior. It doesn’t technically provide any protection, even under a Trump administration.

It may be a clear signal that the IRS is not planning to take action against churches that endorse candidates in the ordinary course of their religious communication. But what happens if Pritzker or Newsom becomes the next president? In the past, Democratic presidents have also had no interest in enforcing the Johnson Amendment. But the fact the IRS has proposed this settlement now, under a Trump administration, has created a salient political issue. If you’re a Democrat, you could use this issue to differentiate yourself from Trump. So I actually think this case—this proposed settlement—might increase the risk for politically engaged churches under the next Democratic administration, at least a little bit. If this hadn’t happened, I really couldn’t envision a future during which any administration, Democrat or Republican, enforces the Johnson Amendment, except in really egregious cases.

Interview with author and historian Randall Balmer

Bettina Krause: One of the most frequent criticisms of the Johnson Amendment from some religious leaders or groups is that it infringes on their constitutional free speech rights, and it targets religion in a hostile way. What do you make of those claims?

Randall Balmer: What that argument fails to acknowledge is that tax exemption is a form of public subsidy. That is to say, religious organizations and other tax-exempt organizations do not pay property taxes, income taxes, corporate taxes. And that means everyone else has to make up the difference, whether it’s funding defense spending or police protection, fire departments, or the local parks. Everyone else has to pony up a little bit more. Now, I’m not saying it’s a bad thing. I think there’s an argument that America’s Founders understood the value of voluntary organizations, and they wanted to encourage them.

But it’s undeniable to me that tax exemption is a form of public subsidy. All the Johnson Amendment asks in return is that in order to maintain that public subsidy, these organizations don’t make political endorsements.

Since 1954 until very recently, most religious organizations have thought, This is a pretty good deal. Let’s go with it. But the rhetoric now, as you know, is that this is somehow an infringement of free speech.

Well, if they’re truly serious about wanting to make political endorsements, fine. They can give up their tax exemption. But not many would be willing to do that, because it’s too valuable.

The Johnson Amendment reinforces the wall of separation between church and state. In effect it’s saying, “Don’t traverse this line between religion and politics.” I called my book America’s Best Idea because I think the First Amendment and church-state separation truly is America’s best idea! The beauty of the First Amendment is that it has shielded the government from the perils of religious factionalism on the one hand, and on the other it has shielded faith from too close an association with the state.

I keep coming back to Roger Williams and his idea of protecting the “garden” of the church from the “wilderness” of the world. What we as twenty-­first-century people miss in that metaphor is that Roger Williams and his contemporaries were not supporters of the Sierra Club! That is to say, they didn’t share today’s romantic notions about the meaning of wilderness. So when Roger Williams talks about separating the garden of the church from the wilderness of the world, his principal concern is maintaining the integrity of the faith, to keep it from being fetishized or trivialized by too close an association with the state.

I think the genius of the First Amendment is that it works both ways. It has also shielded the government from religious factionalism. Thomas Jefferson recognized that as early as 1808, his final year as president of the United States. He said, “We have solved, by fair experiment, the great and interesting question of whether freedom of religion is compatible with order in government, and obedience to the laws.” He’s saying that it works to keep these two entities separate. It works because it provides peace and tranquility and safeguards us from the religious contestation that marked relations between church and state in the Old World, particularly in France, but also in the English Revolution.

Krause: You’re an ordained Episcopal priest, as well as being one of America’s foremost voices on church-state separation. I’m curious how your views developed.

Balmer: The largest influence, frankly, is that in my study of American religious history, which is my academic field, I see the effects of the First Amendment. It goes back at least to Adam Smith. In 1776 he published The Wealth of Nations, which is a brief for free-market capitalism, and one of his examples was religion. He said, in effect, “If states stay out of religion, religion is going to flourish.” He was trying to make a larger argument about the importance of free markets, but we can also see the unfolding of this reality in the massive flowering of religion in America. I teach a course, Religion in North America, and it’s an abridged version of the entire topic, because I can’t possibly fit it all into a single term. There’s so much going on. And this vibrant religious “marketplace” exists precisely because of the First Amendment and the disestablishment clause, which forbade the state from endorsing one religion over another.

The First Amendment is an extension of the core principles of our charter documents. It seems to me that the overwhelming characteristic of our charter documents is the protection of the rights of minorities. Now, we have to be clear that we as Americans have been far too slow to extend those rights to women, to people of color, Native Americans, the whole spectrum. But we’ve always tried, as a people, to lean into those ideals—even if imperfectly and far too slowly. And the First Amendment extends this protection to minority religious groups as well. It gives them the right of free exercise. It says the state is not going to put its thumb on the scale in favor of one religious group or another. And so I see the First Amendment as being a type of embodiment of our attempt to fulfill this larger promise of America’s charter documents.

In March 1965 Martin Luther King Jr., quoting Theodore Parker, said, “The arc of the moral universe is long, but it bends toward justice.” That’s what I was just describing in our collective attempts to try to expand our embrace of minorities and minority views.

Right now the arc is, at best, stalled. And what I worry about is a U-turn somewhere in that arc. But I think it’s important to keep our eye on the prize and to keep pushing toward justice.

Krause: There are many unknowns about what this proposed settlement by the IRS means in practice. But assuming this will have some kind of green light effect—that some religious groups will feel emboldened to enter more fully into partisan politics—what’s a potential way this could change America’s political and religious landscape?

Balmer: Well, let’s game this out. Let’s say that I’m a wealthy man and I have disposable income. Suppose I have a million dollars that I won’t miss, and I go to the pastor of a megachurch in Texas with thousands of members and a huge television audience and say, “Listen, I’ve got a million dollars here that I want to contribute to your church. All I ask in return is that I have a particular candidate in mind who needs a boost. So maybe once every other week in your sermon you could just say a nice thing about J. D. Vance or Gavin Newsom, or anybody else, in exchange for my million dollars.”

If I’m able to turn the head of this pastor with the prospect of this donation, I get a tax deduction for my million-dollar contribution to a tax-exempt organization. And in return, this minister agrees to push my candidate by making either a full-throated endorsement or perhaps by being a political whisperer of some sort, subtly pushing my candidate. Wouldn’t this turn these churches, these religious organizations, into money-laundering operations?

As a person of faith, I worry about what that does to the integrity of the faith. We need desperately, in this moment, to hear prophetic voices that are calling out corruption, calling out the unutterable things that we’re seeing unfold in the American political landscape. And if these voices are up for sale, then I can guarantee we’re going to hear far fewer prophetic voices.

Krause: If you were talking with a faith leader who’s looking at the news, reading up on the fate of the Johnson Amendment, wondering what it means, what would you say?

Balmer: I would say that the First Amendment and the separation of church and state is the best friend that religion has ever had in this country. It truly mystifies me why any religious group would try to eviscerate that. These ideas are responsible for America’s vibrant religious marketplace—a marketplace that’s unmatched anywhere in the world.

And I would also say that evangelicals, in particular, have always fared very, very well in this marketplace, principally because they’ve always understood how to speak the idiom of the culture. Whether it’s the open-air preaching of George Whitefield back in the eighteenth century, the circuit riders in the nineteenth century, or the colporteurs later in the nineteenth century who rode the rail lines, distributed tracts, sold Bibles, organized Sunday schools. Or the urban revivalism of people like Billy Sunday and Billy Graham in the twentieth century. Or the megachurches of a more recent vintage.

Evangelicals know how to tap into and to speak the idiom of the culture. They do it brilliantly. And so, again, why would they want to destroy that marketplace or try to rig it in their favor? It won’t work. It’ll backfire. It’s in their own interest—and in the best interest of faith—to defend the separation between church and state. And I would also add that it’s in the best interest of our civil and political order to defend this separation of church and state. That’s why it’s America’s best idea.

1 Conversations have been edited for length and clarity.

2 At the time of publication the court had not yet ruled on the proposed settlement.

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