By Marc Randazza
President Trump promised to get rid of a law that restricts churches from engaging in political speech. Trump said he would "totally destroy" the Johnson Amendment. That law is believed to say that if a church endorses or campaigns for political candidates, it loses its tax exempt status.
The result has been a wave of shock. Why, I can't explain, since it was one of his campaign promises.
There seems to be a perception that the Johnson Amendment only applies to religious organizations. Trump's words themselves seem to contribute to this misinformation.
"I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution."
And that is sort-of true.
The full truth is that the law applies to all organizations that claim tax exemption under Section 501(c)(3).
Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.
However, these organizations can still do non-partisan political activity. They can conduct "get out the vote" drives, non-partisan political education programs, and public forums on political issues. They just can't promote one candidate over another.
As a First Amendment advocate, I have a bit of a problem with any law that causes a citizen to have to check his speech, lest the government take some punitive action. I realize that it is a bit more complex than that. One could say it isn't "punitive," because it is really just that these organizations get a conditional subsidy. Adhere to the conditions, or lose the subsidy. Fair bargain, right?
I support the idea of getting rid of the Johnson Amendment – at least for churches. Political speech is the core of the First Amendment. Freedom of Religion is right smack next to it. I don't want a priest refraining from giving a particular line in a sermon because it would create negative governmental action. I similarly don't want someone to feel like they have to check their participation in the political process for the same reason. But, when I merge freedom of religion and freedom of speech, it really becomes troubling.
So, I'm down with this idea.
But, there's a catch.
Churches themselves should not be able to claim tax-exempt status.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court gave us a three-part test to determine whether governmental conduct violates the Establishment Clause: (1) it must have a secular purpose, (2) the government action must have a principal or primary effect that neither advances nor inhibits religion, and (3) the government action may not foster an excessive governmental entanglement with religion.
Permissible conduct must satisfy all three requirements. Edwards v. Aguillard, 482 U.S. 578, 583 (1987); Vernon v. City of Los Angeles, 27 F.3d 1385, 1396-97 (9th Cir. 1994). Despite the colorful potshots that conservative justices like Scalia have taken over the years, Lemon remains good law. (Scalia wrote “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 397 (1992)).
Is there a "secular purpose" in giving churches tax exempt status? Perhaps you could argue that. Does it foster an "excessive governmental entanglement with religion?" You could argue about that too. But, giving a church exempt status seems to "advance religion."
Churches are businesses. Maybe some are awfully unprofitable. Others are wildly profitable. When I see megachurch pastors with private jets, and I know that my law firm has to pay taxes, but that prick doesn't, that makes me start to wonder how I can turn my firm into a church. We are subsidizing houses of worship, and that is where the problem lies — not in the Johnson Amendment itself. And this isn't just a federal issue. When you see a church being built in your town, go look at your property tax bill. How much lower would it be if that church paid taxes? Ok, maybe one church doesn't change anything, but what if all of them had to pay their fair share?
Would some of them have to close up shop? Perhaps. So what? Would any church argue to me that they couldn't keep the doors open with tithes and contributions? Why not? If your church isn't important enough to you that you would give your money to keep it open, then why should the rest of us have to subsidize it? If your church catches fire, my fire department comes to put it out. I pay my share, why shouldn't you?
The best way to solve this problem would be to recognize that churches should be taxed like any other business. Then, let them proselytize to their hearts' content.
So to merge the arguments, why shouldn't churches feel 100% unconstrained from being part of the political process? Many people vote the way they think their imaginary friend wants them to. Many people listen to religious leaders when it comes to politics. What is more political than religion? At the same time, religion is a business. There's no denying that. It might be the second oldest profession.
Lets face it, religion did not start because mankind needed a structure for its superstitions. No, religion was started by the first con man. When everyone else was out hunting antelope and gathering berries and getting eaten by dinosaurs 6,000 years ago, one guy (I think his name was "Frank") said "fuck, I would really rather stay in bed."
So Frank tells everyone "hey, the sun is actually a guy, and that guy talks to me, and that guy says you need to bring me antelope steaks, and I gotta stay here and talk to the sun."
Well you know what Frank? Fuck you, go get your own antelope and berries. And if you want to then tell me who to vote for, in between bites, fine.
Marc Randazza is the national president of the First Amendment Lawyers Association
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