What pastors say from the pulpit is the church’s business, not the IRS’s. Or at least that’s how it should be. And in May, that’s how President Trump promised that it would be under his administration. But on Tuesday, the Department of Justice informed a federal court that President Trump’s promise to stop enforcing the Johnson amendment against churches was meaningless, and that the IRS was going about business as usual. This means threatening churches with an “absolute” restriction on internal church teaching. And not just on teaching that supports or opposes candidates, but anything the IRS determines might suggest voting for a certain candidate, such as religious teaching that pro-life beliefs should be reflected in voting choices when abortion is an issue in an ongoing political campaign. This restriction comes with what the president rightly described as “crippling financial punishment” if a church fails to toe the line.
Legal scholars from across the political spectrum like Douglas Laycock and Philip Hamburger have said that this restriction on sermons is “indefensible” and “one of the most sweeping violations of the First Amendment in American history.” And for that reason, while the IRS talks big, it has kept courts from calling its bluff by never actually enforcing its rules against church sermons.
In response to the president’s promise to keep the IRS from threatening churches, the militant anti-religion group Freedom From Religion Foundation filed a lawsuit in Wisconsin federal court demanding that the IRS resume enforcing its rules against churches. My firm, the Becket Fund for Religious Liberty, has been asked to intervene in the case on behalf of three Midwestern pastors and a church who stand to be directly harmed if FFRF has its way. And this week, the pastors asked the district court to dismiss the case based on the religion clauses’ combined guarantee of autonomy for internal church affairs.
But far from respecting the pastors’ attempt to defend their own rights, DOJ aggressively tried to box them out. DOJ told the district court that the pastors “do not have authority” to raise First Amendment protections. Worse, DOJ told the court that President Trump’s promises had no legal or practical effect and thus, instead of being eased, the IRS’s “restrictions” on sermons remained “absolute.” And since church sermons were still under the IRS’s thumb, DOJ argued that FFRF had no reason to be upset. FFRF itself reportedly sees DOJ’s position as being that the president’s promise “really doesn’t do anything.”
It remains to be seen whether FFRF will treat DOJ’s public retreat from the president’s promise as a fig leaf for declaring “victory” and dropping its own lawsuit. FFRF has done that before. It might pause, though, since anonymous DOJ officials told reporters on Wednesday that the government was, in fact, not enforcing the IRS restrictions against sermons.
The more pressing question, though, is over why the Trump administration is acting at cross-purposes with itself. To be sure, reasonable people can disagree over whether pastors should preach politics. But the issue is who decides what is said from the pulpit — the church or the IRS? President Trump said he wanted churches to decide for themselves. His own lawyers, though, appear to be saying something very close to the opposite. They ought to be treating this case not as another run-of-the-mill slip-and-fall lawsuit against the government, but as an opportunity to determine the Johnson amendment’s constitutionality once and for all.