Johnson Amendment Repeal Attempt Cites ‘Churches’ Only

Somewhat buried in the deluge of Thursday’s 429-page tax proposal from the House of Representatives was Sect. 5201, permitting churches to make political statements during the ordinary course of religious services. The section, the second to last of the bill, runs counter to the Johnson Amendment, which has prohibited partisan political activity among all 501(c)(3)s since 1954.

The section’s wording has been met with confusion and opposition from some nonprofit leaders and civil rights groups. The term “church” is used twice in the provision with no mention of other houses of worship. A Capitol Hill staffer speaking to The NonProfit Times on background declined to speculate as to whether the language in the section might be changed in subsequent drafts.

The section specifically states that churches, integrated auxiliaries, and organizations described in 508(c)(1)(A) — which also refers to churches, integrated auxiliaries, and conventions or associations of churches –“shall not fail to be treated as organized and operated exclusively for a religious purpose, nor shall it be deemed to have participated in, or intervened in any political campaign on behalf of any candidate for public office, solely because of the content of any homily, sermon, teaching, dialectic, or other presentation made during a religious service or gatherings . . .”

A House Ways & Means Committee spokesperson told The NonProfit Times that, though other religious entities nor more generic terms such as “houses of worship” are used in the bill, the term is intended to be read in general terms.

“The bill uses the word ‘church’ broadly to include all houses of worship, regardless of religions,” the spokesperson said in an email. “An ‘integrated auxiliary of a church’ is generally a charitable organization that is affiliated with a church or convention and primarily receives its support from the church, which includes seminaries, men’s and women’s organizations, etc.”

In the immediate aftermath of the bill’s release, Hadar Susskind, senior vice president of government relations for the Council on Foundations, said that the language in the section creates a lack of clarity as to whether the exception to the Johnson Amendment is limited to churches or expands to other religious entities. Ibrahim Hooper, communications director for the Council on American-Islamic Relations, said that the council will monitor the situation and might request a change in language if ambiguity persists.

“It may just be an oversight in an initial draft that can be corrected in subsequent versions . . . It is obviously something that we will be following up on to make sure it’s a generic reference to houses of worship and not any particular faith.”

A number of religious and civil rights groups told The NonProfit Times that the language might be dated, but likely applies to all religious groups. Opposition to the section still remains for separate reasons.

The Islamic Society of North America was among 4,000 faith groups to oppose a repeal of the Johnson Amendment in an August letter to Congress, according to Colin Christopher, director of the society’s Office of Interfaith & Community Alliances. The letter urged Congress not to repeal or weaken the Johnson Amendment as it “would harm houses of worship, which are not identified by partisan lines.”

When asked, via an email, to comment on Sect. 5201, Christopher voiced greater concern about the process behind the tax bill than the language used.

“We were disturbed by the lack of transparency involved in the tax and budget discussions, and it is no surprise that a closed door process controlled by almost entirely older white men would result in legislation referring to all houses of worship as ‘churches,’” Christopher said. It probably means all places of worship — churches, temples, mosques, and other spaces — “but when you have a homogenous and controlled process for writing legislation, it often results in group think and ignorant/insensitive language usage such as this,” he said.

David Barkey, counsel for the Anti-Defamation League (ADL), echoed those sentiments. Though “dated,” the exclusive use of the word “church” has been construed by courts to refer to all houses of worship, Barkey said. The greater concern among ADL is that the exemption opens the doors for politicians to secure endorsements from pastors, rabbis, and other religious leaders via donations to congregations.

“We see it as very divisive,” Barkey said of the exemption. “You really shouldn’t divide pews on party lines.”

Ian Thompson, legislative representative for the American Civil Liberties Union (ACLU), added that “churches” has been interpreted broadly by the Internal Revenue Service (IRS). The ACLU still, in a Nov. 3 letter to Ways & Means Committee leadership, urged the removal of Sect. 5201 from subsequent drafts of the bill.

The “unconstitutional provision” violates the 1st Amendment by both favoring religious institutions and engaging in viewpoint discrimination, the letter states. The section might also lead to difficulties for the IRS in regulating whether endorsements took place during ordinary religious activities, whether the speech took place during an event that was part of the entity’s exempt purpose, and might necessitate review of sermons, activities, correspondences, and the like, according to the letter.

“As an organization deeply committed since our founding nearly 100 years ago to protecting the free speech rights of all people, the ACLU would vigorously oppose any effort to chill the ability of houses of worship and religious leaders to speak out on what they see as the important issues of the day,” the letter reads. “That does not mean, however, that religious organizations are entitled to receive special tax benefits and privileges that are unavailable to all other 501(c)(3) organizations.”