In case you’ve missed the news the last couple of weeks about the Johnson Amendment, named after Lyndon Johnson, its promoter, let me catch you up. The provision requires a few pages to understand, but in general it establishes that taxpayers’ donations to 501(c)(3) entities (in general, these are religious, charitable, and educational organizations) would not be tax deductible if the recipient organization takes part in elective politics, that is, “participates in, or intervenes in (including the publishing or distributing for statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

A church or any other 501(c)(3) could lobby for greater attention to global warming or abortion, but could not support a candidate for office. President Trump’s executive order causes the IRS not to pursue churches as that law requires. (I do not for a moment think he did so due to conviction on the matter, but for its effect in retaining the religious right cheerleaders in his base.)

His misleadingly worded executive order said his action would give churches their “voices back” by directing the Treasury Department not to take action against religious organizations that engage in political speech. He’d been criticizing the law for some time, but actual repeal is solely under Congressional authority.

By the way, Trump’s own speech, as it frequently does, includes an implicit lie in order to make his action sound more reasonable. The Johnson Amendment does not penalize political speech, only political speech that addresses a specific candidate for office. Speech that addresses policy choices or general governmental action is not penalized. Yet statements by the mostly fundamentalist Christian opposition to the law continue, along with Trump, to employ the useful fiction.

For years, the IRS has been extremely reluctant to enforce the Johnson Amendment anyway, choosing to look the other way in almost all instances of church politicking. (I’ll save space by not saying church, synagogue, mosque, or other word. I’ll use the word church as shorthand for all organizations of worship.) Another favor from the IRS to churches (but not other 501(c)(3) organizations!) frees them from detailed accounting to substantiate that their expenditures really are on their supposed charitable/religious function and that they refrain from prohibited political activities. Secular organizations that are just as charitable, educational, or philosophical are subject to IRS audits even though they are in the same tax category. Equally curious, a minister’s (rabbi’s, Iman’s) housing allowance is not taxable to him or her, whereas payment to a secular leader’s housing is taxable to that leader. In other words, being religious gets special breaks despite the U. S. Constitution.

Church spokespersons disagree on whether they think the Johnson Amendment makes sense and whether Trump’s executive action is warranted. In general, Christian fundamentalists favor Trump’s action. While those religious leaders want the special tax treatment without giving up being politically active in elections, others fear so close a tie between church and state, seeing it as not conducive to church independence. Since churches, unlike other 501(c)(3)s, do not have to reveal their contributors, removing even the weak provisions of church accountability opens the door to greater use of churches (or new entities organized as churches) as a secretive funding source for political campaigns, as well spelled out in “Trump Wants to Make Churches the New Super PACS by Emma Green, The Atlantic, August 2, 2016.

Religious leaders disagree with each other, as a brief review of the controversy will illustrate. (I should point out that this matter is only tangentially related to the “religion in the public square” controversy [see my posts “Religion in the public square,” Oct. 10, 2015; “Atheists in public office,” Nov. 25, 2013]). Each of these quotations (borrowed heavily though not exclusively from “Enthusiasm, dread greet church order” by Amy Forliti, AP, May 9, 2017) is marked as either “Enforce the Johnson Amendment” (i.e., against the Trump action) or “Ignore the Johnson Amendment” (i.e., for the Trump action):

• Ignore the Johnson Amendment: Rev. Gus Booth, pastor of Warroad Community Church, Minn.: “I ought to be able to say anything that I want to say, wherever I want to say it, I don’t lose free speech rights when I step behind the pulpit. In fact, that should be some of the most protected speech.”
• Enforce the Johnson Amendment: Rev. Gregory Boyd, senior pastor of Woodland Hills Church, St. Paul. Minn.: “[For pastors to use the pulpit] “to get others to buy into their particular way of voting is, I think, a real abuse of authority.”
• Ignore the Johnson Amendment: David Fiorazo, Christian blogger, “A pivotal law, was passed by a shrewd politician to intimidate people of faith. Was this even constitutional? The Left uses this to bully Christian pastors and groups with threats of losing their nonprofit status should they dare talk about the Bible as it relates to cultural, political, fiscal, and social issues, which all fall under the category of moral issues.”
• Enforce the Johnson Amendment: Rev. Wallace Bubar, pastor at Central Presbyterian Church, Des Moines, Ia.: “[The EO is] pandering to the religious right. For whatever reason, the religious right evangelicals have developed a persecution complex here in the last few years, and I think this is intended to address that.”
• Ignore the Johnson Amendment: Rev. Charlie Muller, pastor of Victory Christian Church, Albany, N.Y.: “I’m very involved politically, but we’ve been handcuffed. We want to have a voice, and we haven’t had that.” He went further to say his church plans to endorse a candidate for mayor.
• Enforce the Johnson Amendment: Rev. Mike Kinman, rector, All Saints Church in Pasadena, Calif. “[The clergy’s task] is to interpret our faith for the common good.” He called Trump’s EO “supremely unhelpful.”
• Ignore the Johnson Amendment: Deacon Keith Forunier, “Trump is Right: Repeal the Johnson Amendment That Muzzles Pastors,” July 20, 2016. “The government’s agents increasingly come into our churches . . . claiming that our obligation as faithful Christians to address the major moral issues of our age from our pulpits amounts to ‘political’ activity. Then they threaten to revoke our tax exempt status. Will they soon insist that we may not preach or teach either? The church must be free to speak from her pulpits and in the public square. The Johnson Amendment is a gag order backed by the guns and jails of the state, which threatens that churches which step out of line will have their savings confiscated and their leaders crippled by fines.”
• Enforce the Johnson Amendment: Rabbi Jonah Pesner, who runs the social and advocacy arm of Reform Judaism, the largest American Jewish movement: “[The Johnson Amendment is] a gift to preachers. It gives me the freedom, from the pulpit, to preach about values and policy, but to be protected from partisanship. If I were able to cross that partisan line as a preacher, I’d be under enormous pressure from stakeholders, from members, from donors. It would undermine my moral authority as a guardian of religious tradition.”
• Ignore the Johnson Amendment: Michelle Terry, “How the Johnson Amendment Threatens Churches’ Freedoms,” ACLI, 2016. “There’s a little-known amendment that has been restricting the First Amendment rights of churches and faith-based organizations for more than 60 years. The state should allow the church to speak truth, and instead of silencing unpopular opinions, should let the free market of ideas decide who wins.
• Enforce the Johnson Amendment: The Rev. Don Anderson, executive minister of the Rhode Island State Council of Churches, said the Johnson Amendment can protect the clergy from being put in awkward spots, such as being asked to endorse a parishioner’s relative.

Even small steps toward theocracy can initially appear to be harmless, well-intended special favors politicians bestow on religion. But taken together, they entangle government in deciding one religion is more deserving than another, or one side of a dispute within a religion deserves government support more than another. Many religious people recognize the jeopardy in accepting government largess; many don’t. Members of Americans United for Separation of Church and State (of which I’m a member) are made up of both religious and non-religious members, led by an ordained minister. Its purpose is to keep government and religion out of each other’s domains as a benefit for both religious freedom and good government.

As usual, however, many religionists claim not only religious freedom—which they deserve and to which I am committed—but governmental perqs that others don’t receive. This blog has addressed that phenomenon in various settings repeatedly. As an example in this case, as noted above, Charlie Muller of Victory Christian Church says “We want to have a voice, and we haven’t had that.” Really? Does Mr. Muller forget that not only as a person does he have the same right to free speech as anyone else, but each of his parishioners does as well. But he wants an additional right for his parishioners as a group. I don’t get that extra right and neither do you except through your church. (Note that even then, the Johnson Amendment allows Mr. Muller and his congregation as a group the right to say whatever they wish as long as it is not for a specific candidate.)

If non-religious persons or religious persons form a non-church organization, even if it has an even more targeted charitable function, their non-religious 501(c)(3) does not receive that right to a tax exempt double voice! In other words, President Trump’s action, by brazenly favoring religion over non-religion will have, in effect, changed a marginally Constitutional arrangement into an unconstitutional one!

An interesting, lawyerly twist on the way the Johnson Amendment is frequently discussed is this framing by Gregory W. Hamilton, writing what appears to be a counterpoint in a Liberty University publication, “How Repealing the Johnson Amendment Harms Religious Liberty,” Feb. 15, 2017: “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 [italics mine, JC].”

I’ll summarize this post by quoting Roy Speckhardt, executive director of the American Humanist Association: “Repealing the Johnson Amendment would unleash an opportunity for dark money in politics that can only be described as Citizens United on steroids. Without the Johnson Amendment, churches could operate like super-PACs by funneling anonymous, tax-deductible donations to political candidates. When churches and other faith groups become embroiled in politics, our nation moves dangerously toward becoming a theocracy, not a democracy.”

[Note: Before this post was finalized and sent to WordPress for publication, I found only three other sources that had noticed the First Amendment violation effect of disfavoring donors to secular 501(c)(3)s as compared to donors to churches. I am sure there will be many more.]