National Religious Broadcasters v. Werfel

    National Religious Broadcasters v. Werfel is an attempt to challenge the Johnson Amendment. The Johnson Amendment prohibits nonprofit organizations, including churches, from endorsing or opposing any candidate running for public office. This is important because all nonprofit organizations receive tax breaks from the IRS, and with those tax breaks come certain restrictions. In August of 2024 the National Religious Broadcasters and Intercessors for America along with two Texas churches filed a lawsuit against the commissioner of the IRS, Danny Werfel. The plaintiffs claimed that their right to speak about political candidates and issues was being unconstitutionally censored. Other organizations have gone out of their way to try to bait the IRS into revoking their tax exempt status just to take them to court, but the IRS has been avoiding this issue.

    This case involves both free exercise and establishment clause issues. The churches are claiming that they are unable to freely speak about politics and political candidates. Meanwhile, the IRS and the government are trying to avoid an establishment of religion through tax breaks to churches that endorse politicians. These organizations receive various financial benefits for maintaining their nonprofit status and following restrictions like the one being debated here. Nonprofit organizations pay 0% federal income tax on revenue, their donors get tax breaks and they receive various other state, local, and property tax breaks. This raises the question, is it unconstitutional to make tax exempt status for religious organizations conditional upon political speech censorship?

    The case of Bob Jones University v. United States provides some legal guidelines for how to handle tax exempt organizations and religion. Bob Jones University enrolls students from kindergarten through graduate school and is dedicated to the teaching and propagation of Christian beliefs. The university operated under the following rules, no interracial dating, students who did so were expelled, members of groups that are affiliated with an organization that advocates for interracial marriage are expelled and students who promote or encourage it are expelled. In 1976 the IRS revoked the university’s tax exempt status. The Supreme Court ruled that the government’s state interest in racial equality is more compelling than the private institution’s tax exempt status.

    The Texas churches would argue that the ruling in Bob Jones does not apply to them. Bob Jones deals with racial discrimination, which is illegal, while National Religious Broadcasters is about their first amendment right. Therefore, they should not be penalized for exercising their first amendment right. Meanwhile, the plaintiffs would argue that similar to how anti-racial discrimination adds to the public interest, so does maintaining a division of the church and state through keeping tax deducted money out of political campaign promotion.

    The implications of a decision in this case make it all the more complex. If the courts were to uphold the amendment, the IRS would be forced to begin to enforce this law and monitor religious organizations. Monitoring creates an entirely new set of issues as it could possibly involve an excessive entanglement between the church and state. Lemon v Kurtzman established that a statute that creates excessive entanglement is unconstitutional. Therefore, one can see how the Johnson Amendment could be deemed unconstitutional because it forces the IRS to monitor religious sermons. However, removal of the amendment altogether would mean that taxpayers are indirectly funding political campaigns. The IRS has only revoked tax exempt status for one church in the 70 year history of the Johnson amendment. Therefore, it is clear that they have been trying to avoid enforcing this law due to its complexity.

    Given these outcomes, I believe that the Johnson Amendment is constitutional and should be upheld. The IRS therefore should enforce this law more accurately and actively than they have in the past. Not upholding the law would create an issue of “dark money”, in which donors of churches are not aware of where their funds are going. There will be increased involvement between the IRS and churches, but this does not necessarily need to be excessive. An alternative that creates less entanglement can be created. The IRS can rely more on reports from church patrons and outsiders and then investigate as needed. Essentially, the cost of some entanglement and more censorship is lower than the cost of tax payers indirectly funding political campaigns.