Should religious organizations be permitted to endorse Presidential Candidates?

Sources: 

https://www.au.org/blogs/texas-church-johnson

https://www.facebook.com/181549438557178/videos/1496460373885187/

https://mtsu.edu/first-amendment/article/1744/johnson-amendment

http://projectfairplay.org/letters

http://projectfairplay.org/the-johnson-amendment/#johnson-amendment

    During a sermon on October 14 of this year, Pastor 

Derek Rogers of the Cowboy Church of Corsicana, Texas 

warned against Democratic presidential candidate Joe Biden 

and issued a blatant endorsement of President Donald Trump. 

Pastor Rogers’ rejection of Biden was framed through a 

religious lens, saying “I do not understand how anybody 

that calls themselves a Christian could vote for the agenda 

and the platform of Joe Biden.”, and “if you’re gonna vote 

as a Christian, and vote for biblical truth, you better vote for 

Donald Trump,”. This sermon was live streamed and later 

posted onto the Cowboy Church of Corsicana’s official Facebook 

page, which is self categorized under the identity of a 

religious organization. While Mr. Rogers has absolutely every 

right to hold the views that he expressed, there is a legal boundary 

to him doing so in the context of a religious service that is 

representative of a religious organization: the Johnson Amendment.

    The Johnson Amendment was passed as a part of a bill  

reorganizing the Internal Revenue Code. The amendment, 

as it pertains to religion, does not allow religious organizations 

that receive tax-exempt status to issue an endorsement to any 

particular political candidate, although it also restricts any private 

organization which falls under the category of a “public good”, i.e. 

charitable or scientific organizations. The most common enforcement 

of the amendment is revoking the organization’s tax exempt status. 

This issue may be familiar because in 2017, President Trump issued 

an executive order “to defend the freedom of religion and speech” 

with the explicit intent of diminishing the restrictions found in the 

Johnson amendment. The executive order did not overturn the 

amendment, it is still legal, but it does prevent the IRS from 

enforcing the restrictions and punishing those who violate them. A 

common concern of those who support the President’s executive order 

is that the Johnson amendment unconstitutionally restricts free 

speech and Free Exercise rights. Pastor Rogers’ endorsement is 

technically illegal, even if no legal action will 

be taken against him, but should it be? Are President Trump’s efforts 

to ease the restrictions of the Johnson amendment in line with the 

frameworks the Court uses to decide issues of religious liberty? It will 

be up to whoever succeeds the President to decide whether to continue 

to ease enforcement of the amendment or to reinstate it and 

authorize the IRS to implement it, and with that decision, they 

must ask and answer this question: does the amendment 

unconstitutionally restrict free exercise rights?

 

    We have historically seen the Court be firm in its belief 

that institutions that are publicly accessible and funded, 

mainly public schools, should be religiously neutral in cases 

like Engel v. Vitale, but we have not studied a case about what 

religious leaders are able or allowed to preach in their own private 

services. The closest correlation I can find is in  

Bob Jones University v. United States, where the Court decided that 

it was within the rights of the IRS to revoke the University’s tax 

exempt status in light of their blatant racial discrimination, which 

was contrary to the compelling government interest in preventing 

institutionalized racism. I share the logic used in this case; the government 

has an intrinsic policy/ideological goal that they want to accomplish, and 

if an institution that they are in effect subsidizing is acting contrary to 

that goal, there is no incentive for the government to continue to provide 

aid to them. By this framework, aid is not a right, but a privilege that one 

is not guaranteed or entitled to. Houses of worship are not political actors, 

and giving them the right to officially endorse candidates may lead to 

coercion. It would also act contrary to the public, societal good that religious 

organizations can bring: unity. If we are viewing religious practice as a 

means of establishing community, direct political endorsement divides and 

entrenches that community from others, and therefore, it no longer has any 

public good and instead has a political agenda tied to a specific candidate. 

Additionally, the line is drawn at the official act of endorsing a candidate; 

religious organizations are free to speak out on any social, moral, or political

issue that they choose, and nothing is stopping Pastor Rogers from posting a 

video or essay on his own personal Facebook page; he’s just not allowed to 

endorse a candidate using taxpayer dollars, directly or indirectly. It’s also 

worth noting that besides the issue of religious organizations endorsing 

Presidential candidates, the amendment covers other kinds of organizations, 

like charities, and therefore does not have the primary effect of restricting 

religious expression. The fundamental goal of the amendment is to prevent

inappropriate involvement of non-profit organizations in the political process,

which is most relevantly characterized by concerns over immoral or shady 

campaign finance. 

    However, there is reason to believe that the Court may fear content based 

discrimination, which has been found to be unconstitutional in  

Rosenberger v. University of Virginia, where they ruled in favor of the 

student publication, Wide Awake, being given the same reimbursement 

rights as non-religious student clubs. This is not dissimilar to a church 

being given tax exempt status. A Justice who is concerned with 

content based religious discrimination in a journalism context would 

most likely also be concerned with that same kind of discrimination 

in churches upon this foundational principle: the government should 

not place an extra burden on religious individuals expressing their 

speech and free exercise rights. While endorsing a candidate may not 

be a form of religious expression (unless you believe in a God Emperor, 

in which case, ok cool), their speech is still being limited, although I don't 

find it to be in a way that is outweighed by Free Exercise concerns.

 

    In this case, I do not find the issue of content based discrimination 

convincing, and I think that if this were taken to Court, the the Johnson 

amendment would be found to be constitutional on the grounds that 

there is a compelling government interest in maintaining the wall of 

separation. The amendment is also just not primarily about religion, 

and the President's insistence on a Free Exercise violation is, to me, baseless.

It’s additionally worth mentioning that religious leaders all 

around the country support the Johnson amendment as it stands. It’s not 

just within the government’s interests, but also a religious organization’s 

interests to be protected from partisan politics, which is why changing 

the law as it stands is deeply unpopular. Allowing explicit endorsements 

of particular candidates would create an unhealthy pressure for religious 

organizations to become politically affiliated, because to not do so would mean that 

the religious organization has no "base", like a political party. It encourages 

polarization, partisanship, and competition in a context where it does not 

belong; this is not a concern we should impose upon religion. Perhaps our

President would be in support of the Cowboy Church of Corsicana’s right to 

endorse candidates, but this is an easy thing to support when you’re the 

one being endorsed. Therefore, while it may be within the interests of a 

political candidate or party to oppose the Johnson amendment, the 

provisions it enacts are essential to maintaining a wall of separation; the 

exact point of it is to act contrary to the interests of any political actor by 

maintaining neutrality.