IRS says churches should be allowed to make political endorsements

The IRS said in a new court filing that clergy and houses of worship should be allowed to make political endorsements, a potential move away from a 71-year-old tax policy that curtailed the fusing of religion and politics.

Banning tax-exempt nonprofits — including congregations — from participating in political campaigns violates the First Amendment’s protection of the right to the free exercise of religion and freedom of speech, IRS Commissioner Billy Long said in a court filing Monday in a Texas federal court case.

Nonprofits should be allowed to make political endorsements and not lose their tax exemptions, the IRS said in the court filing. Religious congregations, the filing said, are like families, and their internal communications should not be deemed “participation” in a campaign.

“When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participate[s]’ nor ‘intervene[s]’ in a ‘political campaign,’” according to the filing.

This is the first time, some First Amendment experts and advocacy groups said Tuesday, that the IRS has taken this position. Some applauded the idea, saying religious and nonreligious groups should be able to speak more frankly about candidates, and potentially affect elections.

“First Amendment rights don’t end when a pastor, church member or even a political candidate steps on the platform of a church,” Kelly Shackelford, president of the influential Christian conservative legal organization First Liberty Institute, said in a statement.

Others said changing the policy would further pollute U.S. politics.

“Permitting synagogues and other houses of worship to endorse or oppose candidates undercuts the integrity and unity of these religious institutions, turning them into an extension of political candidates or parties,” Rabbi Jonah Dov Pesner, head of advocacy for the Reform Movement, U.S. Judaism’s largest denomination, said in a statement.

“This decision fails to recognize the realities of modern spiritual life and could expose clergy, including rabbis and cantors, to unjust scrutiny as they fulfill their sacred duty to teach, guide, and inspire,” the statement said.

The IRS declined to comment. The filing was first reported on by the New York Times.

In a lawsuit filed in a Texas district court last year, two religious groups, the National Religious Broadcasters, an evangelical industry organization, and Intercessors for America, a conservative Christian advocacy group, plus two Texas congregations, sued the IRS to challenge the 1954 Johnson Amendment. The provision in the U.S. tax code bans nonprofits, including congregations, from participating in political campaigns. The amendment, named after its main sponsor, then-Sen. Lyndon B. Johnson (D-Texas), is unconstitutional, the groups argued.

In its filing Monday, which is part of a settlement effort, the IRS said it agreed.

A judge has yet to rule. But if the court agrees with the IRS’s interpretation of the Johnson Amendment, some legal experts said, it could have a limited impact for now and apply only to the parties that filed the case.

The National Religious Broadcasters declined to comment Tuesday. Intercessors for America did not immediately respond to a request for comment.

The IRS rarely enforces the rule. Starting in 2008, thousands of pastors joined an activism effort called “Pulpit Freedom Sunday” to test the ban by endorsing political candidates during their sermons. The IRS investigated one but did not punish anyone in that case, according to the group that organized the effort.

Polls show most Americans are wary of their clergy or houses of worship explicitly endorsing political campaigns.

In a 2019 Pew Research Center poll, 76% of Americans said churches and other religious organizations should not “come out in favor of one candidate over another.”

There are still a lot of questions about the impact of the IRS’s interpretation of the Johnson Amendment, said David Keating, president of the Institute for Free Speech. Would sermons at churches with a large online audience qualify as having a “family discussion,” as the IRS described it? Would a church be allowed to take out paid ads?

If the parameters aren’t clear, congregations or other nonprofits may censor themselves, Keating said.

The potential impact on U.S. elections is also unclear. For a decade, President Donald Trump has promised members of his conservative Christian base that he would end the Johnson Amendment. In 2019, he falsely claimed that he “got rid of” it.

“This decision is a victory for religious liberty for people of faith across the country,” said White House spokesperson Taylor Rogers. “The Trump Administration will not tolerate this infringement on Americans’ First Amendment rights.”

“The prerogative to speak politics is absolutely in the hands of the pastor and should not be ceded to any politician ever,” said Daniel Garza, executive director of the Libre Initiative, a conservative group that targets Latinos and is part of the political network funded by billionaire industrialist Charles Koch and like-minded donors.

Many pastors “have been muzzled” because of the IRS ban, he said.

But Garza said he didn’t expect the move to benefit one political party over the other, given the range of ideological views among churchgoers.

This is an important opportunity for liberal-leaning faith leaders who have held back from speaking out about political candidates while their conservative counterparts plowed ahead, said the Rev. Doug Pagitt, executive director of Vote Common Good, a liberal faith-based organizing group.

“We view this as a significant opportunity for Democrats to engage faith voters en masse … This change opens the door for more honest, values-based conversations in faith communities across the country,” Pagitt wrote in a statement. “Democrats who care about justice, compassion, and the common good should not shy away from this moment.”