It's hard to separate politics and religion.

Photographer: Olivier Douliery/Bloomberg

Churches Break Politics Rule All the Time. So End It.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Two weeks into the Trump administration, progressives can be forgiven for starting to think that anything the president proposes is constitutionally suspect. Donald Trump’s call to repeal the Johnson amendment, a law that bars religious organizations from political action on pain of losing their tax-exempt status, is different.

The Johnson amendment may arguably have relied on the idea that religion and politics can be strictly separated. But it’s always been difficult to enforce, and the basic premise is flawed.

Many religious teachings have political implications, and the government shouldn’t be in the business of monitoring how far toward politics a sermon has strayed. The value of religious liberty -- the genuine article, not the kind that’s an excuse for homophobia -- would be served by repeal.

The law, adopted in 1954 at the proposal of then-Senator Lyndon Johnson , covers all tax-exempt 501(c)(3) organizations. It says among other things that they may not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

But what counts as participation or intervention? The IRS website says that “contributions to political campaign funds or public statements of position … in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity.”

Restricting payments makes some sense, although not too many churches or synagogues have the money or inclination to make direct campaign contributions. But “public statements of position” is a lot vaguer.

The IRS guidance could be treated as a bright line rule -- such as “don’t mention the candidate by name and say the words ‘Vote for her.’” But if that were the rule, it would make little sense. A candidate could be invited to speak from the pulpit, and that wouldn’t count as participation or intervention unless a clergy person speaking for the congregation advised voting for the candidate. That’s a distinction without a meaningful difference.

The IRS seems to suggest that “voter education or registration activities” that favor “a candidate or group of candidates” are also barred.

But this language is so broad as to be almost meaningless. If I teach from the pulpit that abortion is wrong and that everyone has a duty to vote according to his or her religious conscience, that sounds like pro-Republican voter education, which would violate the guideline. Ditto on the other side if I teach that God wants us to care for the least among us, and that this morally requires the government to provide health care for all.

The upshot is that churches, synagogues and mosques of all denominations are breaking the rules set by the Johnson amendment all the time. Perhaps some clergy avoid mentioning the names of candidates, but many don’t. It’s fairly ridiculous for the government to insist that they do.

Indeed, enforcement of the Johnson amendment, if it were taken seriously, would threaten the free exercise of religion and potentially veer into an establishment of religion. True, the government isn’t prohibiting the political speech altogether, but it is threatening to remove the tax-exempt status that is the lifeblood of most religious institutions.

Imagine what evidence of a Johnson amendment violation would look like: recorded sermons or testimony of worshipers that the prayer leader endorsed a candidate. That sounds dangerously like government monitoring of religious expression.

These extreme circumstances haven’t arisen because the law isn’t enforced very often. It is nonetheless as a potential threat to religious organizations. And it’s worth noting that the enforcement could easily be partisan.

To be sure, Trump is calling for repeal of the law to please evangelical Christian organizations. That’s not necessarily bad. It is highly preferable to adoption of the draft executive order that’s been reported as circulating and that apparently carves out anti-gay religious beliefs for special exemptions from law. If Trump eschews that order and instead pushes for repeal of the Johnson amendment, that would count as a big win for liberals.

  1. Johnson may well have intended the amendment as political retaliation against nonprofit groups that opposed him.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net