Defending the Johnson Amendment as a Critical Tool to Preserve Democracy and Religious Freedom
Rebecca S. Markert
Internal Revenue Service Building in Maryland from the Carol M. Highsmith Archive.
This article is part of our series on Law, Religion, and The Johnson Amendment. If you’d like to explore other articles in this series, click here.
On a Sunday morning in late October 2008, in Charlotte, North Carolina, Pastor Greg Moss of St. Paul Missionary Baptist Church showed his unequivocal support for candidate Obama. During an October 28th sermon about the importance of voting, Moss revealed a T-shirt beneath his robe that read, “OMG—Obama’s My Guy.” Earlier that month, across the country, parishioners attending morning mass at St. Catherine of Siena Catholic Church in Orange Park, Florida, were admonished by Assistant Pastor Dan Nelson to “You can vote for anybody, even a dog, but don’t vote for Obama.” His message was a clear appeal to reject then–Senator Barack Obama, the Democratic presidential nominee.
These are just two examples of pastors openly flouting the law that prevents 501(c)(3) organizations, including houses of worship, from openly supporting or opposing candidates. There are countless others. Despite the enduring popularity of the law among Americans across the political spectrum, a minority of conservative Christian legal groups have been trying to get courts to strike it down as unconstitutional for almost two decades.
In fact, there have been coordinated attempts to entice the Internal Revenue Service to strip nonprofits of their tax-exempt status so they could set up a legal challenge. For instance, the Alliance Defending Freedom (ADF), a Christian legal group, launched “Pulpit Freedom Sunday” in 2008, an event during which participating pastors across the United States deliberately used the pulpit to endorse or oppose political candidates during Sunday sermons in October just weeks, and sometimes days, before Election Day. Participants were then urged to send their sermons to the IRS. ADF announced this campaign in a release on its website in September of 2008, explaining that “ pastors will exercise their First Amendment right to preach on [the moral qualifications of candidates seeking public office], despite federal tax regulations that prohibit intervening and participating in a political campaign.”
For over seventy years, the Johnson Amendment has protected the integrity of both our nonprofit organizations, including houses of worship, and our elections. The majority of Americans–including faith leaders and many evangelical Christians–don’t want their churches embroiled in the corrupting influence of partisan politics.
History of the Johnson Amendment
In the 1950s, the American people, acting through Congress, and the many nonprofit organizations operating throughout the country reached a consensus. Known as the Johnson Amendment, this provision of the tax code says 501(c)(3) nonprofit organizations, including churches, cannot endorse or oppose political candidates–in other words, that tax-deductible donations cannot be used to fund political campaigning.
The Johnson Amendment was introduced by then–Senator Lyndon B. Johnson in 1954. The text of the amendment is relatively short and it states that organizations that“directly or indirectly participat[e] in, or interven[e] in, any political campaign on behalf of (or in opposition to) any candidate for public office” do not qualify for Section 501(c)(3) status. In essence, it aims to maintain a clear separation between charitable work and political campaigning.
The Johnson Amendment only limits endorsements or opposition to candidates seeking public office. Churches and faith leaders already have the freedom to speak out about any political, social, or moral issues. For example, the Johnson Amendment did not stop and was not intended to stop Dr. Martin Luther King, Jr. from preaching about civil rights. It does not limit the Catholic Church from speaking out against abortion rights. To be sure, faith leaders enjoy the right to endorse candidates in their own personal capacity. They can even run for political office. They just cannot do it from the pulpit.
All organizations whether religious or secular are free to endorse political candidates, but if they wish to enjoy the benefits of tax exemption, they must comply with the restrictions of the Johnson Amendment. This is an even-handed approach that neither favors or disfavors one particular 501(c)(3) organization. Even so, since its passage, the Johnson Amendment has faced legal challenges and political efforts to weaken or repeal it. These challenges have come primarily from religious organizations and political leaders who claim the law infringes upon free speech and religious freedom. However, courts have consistently upheld its constitutionality.
In 1992, Americans United filed a complaint with the IRS after the Church at Pierce Creek, in New York, published ads in newspapers like the Washington Times and USA Today, encouraging Christians to vote against Democratic candidate Bill Clinton. Three years later, the IRS revoked the tax exempt status of the church, reported as the first revocation of its kind. The church sued, arguing that the Johnson Amendment violated its First Amendment rights and lost. In Branch Ministries v. Rossotti (2000), the U.S. Court of Appeals for the D.C. Circuit upheld the IRS’s decision, ruling that tax exemptions are a form of government subsidy and that conditions on those subsidies—such as avoiding partisan endorsements—do not violate the Free Speech or Religion Clauses, or the Religious Freedom Restoration Act. The court affirmed that churches remain free to speak on political issues but cannot engage in partisan campaign activity while benefiting from tax exemption.
In addition to legal cases, there have been significant political efforts to repeal or weaken the amendment. Beginning in the early 2000s, some members of Congress introduced bills such as the Houses of Worship Political Speech Protection Act and, more recently, the Free Speech Fairness Act, which sought to allow limited political activity by religious organizations. None of these efforts succeeded legislatively.
In 2016, President Trump vowed to “get rid of and totally destroy” the Johnson Amendment in a ploy to pander to the evangelical vote. Unsurprisingly then, during his first administration, Trump issued an executive order “Promoting Free Speech and Religious Liberty” in 2017, directing the IRS to exercise leniency in enforcing the amendment against religious groups. However, because the Johnson Amendment is a statute, the executive branch cannot repeal or nullify it by order alone. Enforcement remains at the discretion of the IRS, so the executive order did nothing to change the law or repeal it.
The Johnson Amendment Remains Popular with the American People
Despite efforts to weaken or repeal the Johnson Amendment, it remains popular with the majority of Americans. Public opinion strongly supports the notion that houses of worship should steer clear of formal political campaign endorsements.
Public support for the Johnson Amendment remains robust and consistent across demographic and religious lines. For example, a 2023 survey by the Public Religion Research Institute (PRRI) found that 75% of Americans opposed allowing churches and houses of worship to endorse political candidates while retaining their tax-exempt status, compared with just 20% in favor. Similar figures were recorded in an earlier 2017 PRRI survey, which showed 71% opposed and 22% in favor of political endorsements by houses of worship. Broken down by political affiliation, only 13% of Democrats, 19% of independents, and 31% of Republicans supported the idea of church endorsements while maintaining tax-exempt status. Additional data from the Pew Research Center show that in 2017 a clear majority of Americans also believed that “churches should not take sides in elections.” According to a 2019 Pew Research survey, about 63% of U.S. adults believe that churches and other places of worship “should keep out of political matters,” while just 36% say they should express views on daily social and political issues.Among churchgoers—those who attend services a few times each year or more—45 % said they weren’t even sure whether their clergy were Democrats or Republicans, and only 11 % believed their clergy were mostly Democrats, while 16 % believed they were mostly Republicans.
Together, these findings illustrate that the principle underpinning the Johnson Amendment—not mixing partisan candidate endorsements with tax-exempt religious or charitable status—enjoys broad public backing, adding weight to the argument that the amendment reflects more than merely legal history: it aligns with the values of most Americans regarding faith institutions and politics. These surveys told us what we already know: congregants prefer their religious institutions to focus on spiritual matters rather than partisan electoral politics.
The Johnson Amendment Is a Tool to Protect Religious Freedom and the Separation of Church and State
The Johnson Amendment plays an important role in securing religious freedom for all, in preserving the constitutional principle of separation between church and state, and in protecting our secular democracy. Religious freedom is best preserved by keeping religion apart from the corrupting influences of politics. The founders believed that both religion and government would be stronger if they operated independently. As James Madison wrote, religion and government “both exist in greater purity, the less they are mixed together.” A weakened or repealed Johnson Amendment blurs the constitutional line between government and religion, and could even give rise to favoritism toward certain faiths or denominations. By maintaining a clear boundary, the Johnson Amendment prevents this kind of entanglement and helps ensure that the government does not privilege or penalize any religion.
When churches and religious organizations are allowed to endorse candidates while retaining tax-exempt status, public funds subsidize political campaigns. Special interests, corporations, and wealthy donors could then co-opt nonprofits in service of political campaigns and candidates. The Johnson Amendment also protects the financial independence of nonprofit organizations by ensuring that they are not corrupted by political campaign donations. It allows these organizations, including churches, to focus on their intended missions and continue to do their charitable work for the public good. If nonprofits start getting involved in partisan politics, it will erode public trust in these institutions.
Current Challenges to the Johnson Amendment: National Religious Broadcasters v. Long
In August of 2024, the National Religious Broadcasters and two Texas churches, Sand Springs Church and First Baptist Church Waskom, filed a lawsuit against the Internal Revenue Service (IRS) in Texas, alleging that the Johnson Amendment violates their First Amendment rights to freedom of speech and free exercise of religion, their Fifth Amendment rights to due process of law and equal protection under the law, and the Religious Freedom Restoration Act. The plaintiffs contend that churches and religious nonprofits have been “chilled” by the law’s threat of losing tax-exempt status if they speak about political candidates “from the pulpit.” They argue that enforcement has been arbitrary and discriminatory and treats some organizations differently than others.
Initially, the government defended against the suit. In December 2024, the defendants filed a motion to dismiss arguing the court lacked jurisdiction and the plaintiffs failed to state a claim. That motion was dismissed as moot a couple months later when the plaintiffs filed an amended complaint in February 2025. The Trump Administration also then flip-flopped and ceased defending the Johnson Amendment.
In July 2025, the plaintiffs and defendants filed a motion with a proposed consent decree that would permanently enjoin the defendants and their successors from enforcing the Johnson Amendment against the two churches. This proposed decree includes sweeping legal pronouncements that purport to radically reinterpret the Johnson Amendment, how it’s been defined by statute and how it’s been interpreted by the courts. The decree asserts that the Johnson Amendment, when “properly interpreted . . .does not reach speech by a house of worship to its congregation, in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.” Thus, when a house of worship engages in that type of communication, it “does not constitute “participation” or “intervention” in a political campaign under the Johnson Amendment.In other words, if a church uses its “customary channels of communication” in the context of its religious services and frames the discussion as issues seen through faith rather than as a formal campaign endorsement, it may speak without losing its 501(c)(3) status. Although the proposed settlement would only apply to the two named churches, it has been perceived as an attempt to bind all future administrations to abandon enforcement of the law–effectively rewriting the law and ignoring Congress, which alone has the power to amend or repeal laws.
Americans United for Separation of Church and State, a national nonprofit organization dedicated to preserving the constitutional principle of religious freedom and the separation of church and state, filed a motion to intervene in the case in July. A hearing on the motion was held in Dallas in November and the court denied the AU’s motion to intervene on December 12th.. The court also stayed the proceedings pending any appeals and AU is considering whether to appeal.
The order denying intervention did not include an entry of the consent decree. That issue remains outstanding. Should the court allow this consent decree to move forward, it has the potential to reshape how the Johnson Amendment is interpreted and enforced, and create disparity between religious organizations and all other charitable organizations designated as 501(c)(3)s. It would open the door to tax-deductible, status-protected organizations functioning similarly to political campaign vehicles or “dark money” conduits. ♦
Rebecca S. Markert serves as the Vice President and Legal Director at AU, leading a team of attorneys working to protect the constitutional principle of separation between church and state. Prior to joining AU, Rebecca was the Legal Director at the Freedom From Religion Foundation for 16 years. Throughout her career, she’s advised on nonprofit compliance with the Johnson Amendment and handled complaints concerning potential Johnson Amendment violations.
Recommended Citation
Markert, Rebecca S. “Defending the Johnson Amendment as a Critical Tool to Preserve Democracy and Religious Freedom.” Canopy Forum, December 17, 2025. https://canopyforum.org/2025/12/17/defending-the-johnson-amendment-as-a-critical-tool-to-preserve-democracy-and-religious-freedom/.
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