Let the Churches Speak

D emocratic California representative Jared Huffman says the United States Conference of Catholic Bishops is “weaponizing religion” by voting on an internal draft document that suggests withholding Communion from pro-abortion Catholic politicians such as Joe Biden. “If they’re going to politically weaponize religion by ‘rebuking’ Democrats who support women’s reproductive choice, then a ‘rebuke’ of their tax-exempt status may be in order,” Huffman wrote.

We hear a lot of this. If religious institutions want to speak out on political issues, then they should pay taxes. Why? There’s no intrinsic relationship between the right to free expression and the tax code. Religious institutions, and other non-profits, enjoyed tax exemptions long before the Johnson amendment was passed in 1954, even as American churches were involved in some of the biggest political battles of the 19th and 20th centuries. Codifying the connection between political speech and taxes was the concoction of a corrupt politician who wanted to punish adversaries and consolidate power.

Lyndon Johnson’s addition to Internal Revenue Code Section 501(c)(3), which prohibited campaign speech by nonprofits and tax-exempt churches, came about after the Texas senator was challenged by nonprofits and churches during his Senate run. The amendment bypassed the normal legislative process. There was no explanatory memo and no committee process. There was no floor debate, only a voice vote, and so no record of where senators fell on the matter.

One of the fundamental problems with the Johnson amendment is that oversight can be arbitrarily and disproportionately applied, exploited by partisans such as Huffman who play favorites and use it as a tool of intimidation to chill debate. Huffman, for example, is upset at the Catholic Church, but, as far as I can tell, had no problem when Barack Obama was standing at the pulpit of Ebenezer Baptist Church Horizon Sanctuary to campaign for ending the filibuster — a political topic, no doubt. Nor did any Democrats complain when the U.S. Catholic bishops submitted a brief to the Supreme Court declaring that President Donald Trump’s ban on migration from five Muslim countries was “blatant religious discrimination.”

Huffman takes it further, of course, by asserting that the Church is “weaponizing” faith, not by openly campaigning or endorsing any candidates or issues, but by internally rebuking powerful members of their own faith who publicly support policies that not only allow for the killing of the unborn, but compel others — include Catholics, whose opposition to abortion dates back to the first century — to participate. (One imagines that the media’s efforts to cast Biden as an exceptionally devout Catholic also put the bishops in a tough position, as they might convince others that abortion is kosher, as it were.)

Huffman seems to believe the Church’s dissemination of the Eucharist should define its tax status. Others, such as Maggie Siddiqi, senior director of the Faith and Progressive Policy Initiative at the Center for American Progress, groused that “President Trump was a deeply amoral individual whose personal and political stances flew in the face of virtually everything the Catholic Church teaches.” Indeed, the fact that the Catholic Church did not concern itself with the moral deviations of a non-Catholic president is only further proof that this is about doctrine.

Why should I subsidize any church’s speech, people will ask? You don’t, unless your argument is that the government is the default owner of every dollar generated in the United States, and that every dollar it allows you to keep is a gift. Churches should be given tax-exempt status because they’re not in the business of generating profits. There is no reason for there to be any arbitrary limitations on its speech.

Most churches, of course, are probably happy that the Johnson amendment keeps them out of the thicket of partisan politics. One supposes that most religious institutions would refrain from political endorsements even if it were permissible by law. Yet as religious liberty continues to come under assault, it will become increasingly difficult for churches to stay above the fray. And while elected officials have every right to be critical of a church — “the dogma lives loudly within you,” and so on — it is inexplicable that the reaction to such attacks should be considered illicit partisan speech.

It’s true, as well, that most of this is academic. Institutions rarely lose their tax exemptions. Many churches openly involve themselves in politics. The Johnson amendment has been challenged only a handful of times over the past 70 years, with groups failing to establish that their free-exercise rights had been substantially burdened. Which seems to undercut the intent of constitutional protections on speech and faith. But if politicians are going to start threatening religious institutions for internal decisions, maybe it’s time to start challenging these capricious restrictions on expression.