WASHINGTON — At the National Prayer Breakfast in Washington, D.C., President Donald Trump told those gathered that he supported the “right to worship according to our own beliefs.”
For many Catholics there Feb. 2, the right to serve God according to the Church’s teaching had been on the forefront of their minds as the most pressing issue of religious liberty. After all, the Little Sisters of the Poor, along with many other Catholic institutions, had been battling the Department of Health and Human Services over its contraception mandate. And the Trump administration still had not lifted it.
Instead, President Trump had a different area of religious freedom on his mind: the 1954 law authored by Sen. Lyndon Johnson, also known as the “Johnson amendment,” which amended the tax code to prohibit 501(c)3 tax-exempt entities, including churches, from raising funds and directly or indirectly supporting particular political candidates.
“I will get rid of, and totally destroy, the Johnson amendment and allow our representatives of faith to speak freely and without fear of retribution,” he told the audience. “I will do that — remember.”
Trump was repeating a pledge to repeal the Johnson amendment that he had made at the Republican National Convention in July to the religious voters who supported him, particularly Evangelicals, alleging that “our laws prevent you from speaking your minds from your own pulpits.”
But the Johnson amendment’s actual impact on the liberty of the Church is a matter of debate. Some see repeal as necessary to protect the Church’s voice in the public square from government coercion. Others take the view that preserving the Johnson amendment protects the Church and its educational and charitable institutions from being strong-armed into serving partisan dogmas, rather than challenging the social order with the entirety of Gospel teaching.
Religious liberty concerns
Hardly any churches have actually been investigated, and none have been punished, for violations of the Johnson amendment. One church, All Saints Episcopal Church in Pasadena, faced an audit from the IRS over a sermon that seemed to go harder on President George W. Bush than his opponent John Kerry right before the 2004 election, even though it endorsed neither candidate. All Saints fought the IRS, which then dropped the probe in September 2007.
Advocates for repealing the Johnson amendment have argued that the law pressures churches to self-censor the messages they wish to convey to their congregations in order to preserve their tax-exempt status. Not all churches have $275,000 in the bank like All Saints to spend on tax attorneys.
Christiana Holcomb, legal counsel at the Center for Christian Ministries of Alliance Defending Freedom, told Angelus News that pastors do not have a “bright line” when it comes to what they can and cannot say from the pulpit. Instead, the IRS applies a “facts and circumstances test” to determine whether 501(c)3 organizations are compliant with the law, and offers four situational examples where voter education may cross the line into prohibited activity. This includes using what the IRS calls “code words” that stand-in for a particular candidate, such as “pro-life” or “pro-choice,” “liberal” or “conservative,” “Republican” or “Democrat.”
The vagueness of the IRS directives, Holcomb said, discourages pastors from speaking their minds without fear of an IRS audit. ADF has an annual “Pulpit Sunday Initiative,” which has seen almost 2,000 pastors every year send in their sermons to the IRS to dare them to investigate them for Johnson amendment violations. However, Holcomb said so far the IRS has avoided taking the legal bait that would bring on a case to determine the Johnson amendment’s constitutionality.
The Free Speech Fairness Act in Congress would amend the law to prevent the IRS from deeming a church to have participated or intervened in a political campaign solely based on the content of statements made during the ordinary course of its “regular and customary activities.”
While that would allow pastors to be free to speak their minds in the pulpit, Holcomb explained that it leaves the prohibition on fundraising in place, making sure that churches could not turn into de facto political action committees.
How many pastors want it?
A June 2016 survey from Pew Research Center found that Americans are fairly split (49 percent against, 47 percent in favor) when it comes to churches expressing their views on political and social matters. However, the vast majority (66 percent) stated they did not want churches to endorse particular candidates. Just 29 percent of Americans said churches should come out in favor of one candidate over another.
Marianist Father James Heft, president of the Institute for Advanced Catholic Studies at the University of Southern California, told Angelus News he did not think that repealing the Johnson amendment would be a good idea.
“When I go to the pulpit, I want to say something that is deeper than partisan politics,” Father Heft said. “I don’t think the Gospel should ever be reduced to partisan politics, but if it doesn’t have a political impact, the Gospel is anemic.”
The far bigger problem for the Church, Father Heft explained, was that far too few clergy and congregations are educated in the Church’s social teaching. Because the clergy do not know how best to present the Church’s rich teaching on what makes a just society, he said, the faithful are instead “turning to too much of the partisan media, whether it’s Fox or MSNBC, to determine how to think.”
“I’ve asked any number of Catholics on this immigration issue: ‘Do you know what the American bishops’ position is on immigration?’ I’ve asked this question 50 times and I have yet to hear a Catholic say, ‘Oh, yes, I know what they’re saying, they’ve got about five points,’” he said.
The Church’s social teaching, he said, needs to be understood as the Gospel “applied to the culture and the difficulties we have, and what are credible and defensible positions that Catholics should take.” The principles of Catholic social teaching, he said, have to be embraced by Catholics. But the Church says Catholics can disagree upon the prudential means needed to achieve those ends.
“There can be no difference of opinion when it comes to our commitment to the poor. But how best to address that issue is worth debating,” he said.
Eric Baxter, a senior attorney with the Becket Fund for Religious Liberty, told Angelus News that there may be serious cases where Church leaders may have to speak out more forcibly against objectionable candidates. For example, he said it would be entirely reasonable for a pastor to warn his African-American congregation if a particular politician running for office wanted to tear down laws protecting racial equality.
However, Baxter said it would be a mistake for the Trump administration to make the Johnson amendment their highest priority if they are truly concerned about religious liberty. Baxter pointed out that the administration still has not fixed the HHS contraceptive mandate that threatens the Little Sisters of the Poor, or the HHS gender transition mandate that requires doctors to perform sex-reassignment surgery on a child, even if it violates their religious or ethical beliefs. Trump has also declined to rescind an Obama-era executive order on “sexual orientation” and “gender identity” discrimination by federal contractors, which had no religious liberty protections.
“All of those issues are much more pressing and should be addressed,” he said.
Repealing the Johnson amendment, either whole or in part, could have various other unintended consequences for both the Catholic Church and its many charitable organizations.
“There are a lot of side effects to this that advocates of repeal have not thought through,” Roger Colinvaux at The Catholic University of America Columbus School of Law in Washington, D.C., told Angelus News. He said even relaxing restrictions, such as exempting pastor’s sermons, pose similar problems to repeal. “It’s a very hard thing to tweak.”
The Johnson amendment acts as a shield that protects clergy from parishioners who would exert pressure on them to endorse or oppose candidates in their homilies. Colinvaux said it would not take much imagination to suppose that wealthy parishioners could amp up that pressure by offering to make a large donation to a parish need — or withdraw their donations — so long as the pastor speaks from the pulpit about particular candidates.
But 501(c)3 charities across the board would be hit the hardest by the repeal of the Johnson amendment, and become “tainted with partisan money,” according to Colinvaux. A full repeal would turn charities into the “gold-standard of dark money,” as individuals would take advantage of 501(c)3 status to keep their political donations anonymous and get a tax deduction.
Many charities would also be vulnerable to large donors seeking to advance their agenda, Conlinvaux said, and face temptations to “sacrifice mission for money.” Even those charities that resisted would suffer from a general distrust of charities’ independence from politics that would cast doubt on the integrity of their educational mission.
Another unintended consequence, Colinvaux added, was that private foundations and donor-advised funds could start spending money on campaigns, instead of charitable causes, to achieve their goals.
Repealing the Johnson amendment has not been a priority for leaders in Catholic circles as it has been in Evangelical circles.
John Carr, the former executive director of the Department of Justice, Peace and Human Development at the USCCB, told Angelus News that despite dozens of sessions teaching “Faithful Citizenship,” the U.S. Catholic bishops’ guidelines on how to form Catholic consciences for political life, he never had a pastor express a desire to endorse political candidates from the pulpit.
“The Church is a community of faith, not a political action committee,” said Carr, director of the Initiative on Catholic Social Thought and Public Life at Georgetown University. Even without the Johnson amendment, he said having priests endorse candidates from the pulpit would be both bad theology and bad pastoral practice. Both major parties have taken positions at odds with Catholic social teaching and care for the common good, which the Catholic Church cannot endorse, and Catholics need to know that they are faced with difficult choices.
Catholic clergy, Carr added, are more concerned about the reaction they are likely to get from the intense partisan division and conflict in the pews already, when they preach on the responsibilities of Catholics in political life, than they are about the IRS sending them a letter.
The U.S. Conference of Catholic Bishops (which declined to provide a representative for comment) outlines the “Do’s and Don’ts” for parishes regarding the election season on its website. It encourages parish and church organizations to promote voter participation, organize support or opposition to ballot measures, and keep voter education consistent with Church teaching in a non-partisan atmosphere. It also states they are not to endorse or oppose candidates and political parties, or use their facilities to promote partisan candidates or political materials.
The USCCB bolsters its guidelines to parishes by citing IRS rules. But Carr indicated that regardless of the Johnson amendment, pastors would be wary of straying from the USCCB directive because engaging in partisan politics would “fracture the unity of the Church, and hurt our public witness.”
“We can’t be the chaplain for any party, the cheerleader for any candidate, or advocate for any administration,” he said. “We have to challenge them all.”
Father Heft said priests and deacons need to challenge their congregations with Catholic social doctrine, but should expect pushback because many Catholics agree with the culture that faith is fundamentally a private matter. But the Catholic faith, through its social doctrine, makes demands on the public order.
Regardless of the Johnson amendment or its repeal, the priest said, the Church has given clergy intelligent guidelines for how to form the consciences of the faithful in its teachings on their political responsibilities.
“We have better guidelines than the federal government for preaching.”
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