In 1954, the U.S. Congress amended (without debate or analysis) Internal Revenue Code 501(c)(3) to restrict the speech of non-profit tax-exempt entities, including churches. Before the amendment was passed, there were no restrictions on what churches could or couldn’t do with regard to speech about government and voting, excepting only a 1934 law preventing non-profits from using a substantial part of their resources to lobby for legislation.

The 1954 amendment, offered by then-Senator Lyndon Johnson, stated that non-profit tax-exempt entities could 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.” Since the amendment passed, the IRS has steadfastly maintained that any speech by churches about candidates for government office, including sermons from the pulpit, can result in loss of tax exemption.

Unfortunately, many churches have allowed the 1954 Johnson amendment to effectively silence their speech, even from the pulpit. There are many reasons why the 1954 Johnson amendment violates the Constitution. Here are some of the key reasons why the amendment is unconstitutional:

• The amendment violates the Establishment Clause by requiring the government to excessively and pervasively monitor the speech of churches to ensure they are not transgressing the restriction in the amendment. The amendment allows the government to determine when truly religious speech becomes impermissibly “political.” The government has no business making such decisions.

• The amendment violates the Free Speech Clause because it requires the government to discriminate against speech based solely on the content of the speech. In other words, some speech is allowed, but other speech is not. The Supreme Court has invalidated this type of speech discrimination for decades.

• The amendment also violates the Free Speech Clause by conditioning the receipt of a tax exemption on refraining from certain speech. Put simply, if a church wants the tax exemption, they cannot speak on any and all issues addressed by Scripture. This is an unconstitutional condition on free speech.

• The amendment violates the Free Exercise Clause because it substantially burdens a church’s exercise of religion. The government does not have a compelling reason to burden religion in this way.

Churches have too long feared the loss of tax-exempt status. That’s all it is – risking losing tax-exempt status. Rather than risk confrontation, pastors have self-censored their speech, ignoring blatant immorality in government and foregoing the opportunities to praise moral government leaders. Pastors who long to be relevant to society, to preach the Gospel in a way that has meaning in modern America, often studiously ignore much that goes on in politics lest they draw attention of the IRS.