Separation of Church & State in danger


The Johnson Amendment was proposed by and named after then Senator Lyndon B. Johnson of Texas. It is not an amendment to the Constitution as some may think but an amendment to the tax code. President Eisenhower signed the tax bill into law in Aug 1954 prohibiting all 501(c)(3) non-profit organizations, not just religious organizations, from endorsing or opposing political candidates. If found in violation by the IRS, they risk losing their tax exempt status.

Was Johnson trying to address a constitutional issue related to separation of church and state? Not so said James D. Davidson of Perdue University in his 1998 Review of Religious Research. As Davidson and others have argued Johnson feared that right-wing groups, parading as charities, would attack his reelection campaign.

Perhaps Johnson’s reasons were self-serving at the time however; this provision in the tax code has become the teeth enforcing our 1st Amendment principle of separation of church and state.

Maybe not shark teeth but a deterrent none the less. As Liz Hayes explains in her February 2017 article in Church & State, the Johnson amendment does not gag religious leaders. As private citizens they can endorse candidates and even speak for or against politicized issues. What the Johnson Amendment does do is prevent non-profit entities from endorsing or opposing specific candidates. They can’t direct their tax deductible donations toward a candidate. In other words, they can’t take up collections for or run an ad for a candidate paid for with their donations.

501(c)(3) organizations are the most common type of nonprofit organization in the United States, ranging from charitable foundations to universities and churches. Religious groups have been the most vocal opponents of the Johnson Amendment and they have been fighting for years for its repeal.

Since 2001, Rep. Walker B. Jones Jr, [R-NC-3] has introduced bills to repeal the Johnson Amendment. He introduced bill H.R. 153 in 2015: To restore the Free Speech and First Amendment rights of churches and exempt organizations by repealing the 1954 Johnson Amendment . No further action was taken by the House on this bill. As with all but one of his other similar bills, after referral to House Ways and Means Committee, it was left to expire with the end of the last session of Congress.

However, Rep. Jones wasted no time in re-introducing a similar bill, H.R. 172 on January 3, 2017 the first day of the 115th session of Congress. As stated, the bill Amends the Internal Revenue Code to repeal the prohibition against churches and other tax-exempt organizations participating in political campaigns or supporting or opposing candidates for public office.

Sadly, for those of us who believe that the Johnson Amendment deterred political campaigning from the pulpit, the death of H.R 172 may not follow the life cycle of its predecessors. The winds have changed. The Republican Party’s 2016 platform included a statement urging the repeal of the amendment, then candidate Trump made promises to repeal it and President Trump speaking at the National Prayer Breakfast said “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.”

Actually, what retribution there has been has also been waning. With budget cuts over the last few years, the agency has scarce resources for enforcement of the Internal Revenue Code. According to Center on Budget and Policy Priorities April 4, 2016 report, Since regaining a majority in the 2010 elections, House Republicans have targeted the IRS for sharp cuts

Why do we care? Money and Power. Emma Greene, in the August 2016 issue of The Atlantic suggests that repealing the Johnson Amendment could mean a lot more money possibly flowing into politics via donations to churches and other religious organizations. That could mean religious groups would become much more powerful political forces in American politics—and it would almost certainly tee up future court battles around politicized religious issues, i.e. marriage equality, LGBTQ and reproductive rights.

For those of us who would like to see less religious influence in our politics, the introduction of H.R. 172 is a call to action, to resist all actions which would degrade our 1st Amendment principal of separation of church and state. In a recent Newsday opinion piece Rev. Barry W. Lynn of Americans United reminded us that when religion and government are combined, there’s no true freedom of conscience.

What to do?

1. Follow the progress of H.R 172. Log onto Create an account. Enter H.R. 172 in the search box. Check that you want to follow this bill. Get familiar with Let’s see what else is going on.

2. Contact your representatives. I know everyone keeps saying that, but we can’t let up. Persist! Call, email, snail mail:
Congressman Lee Zeldin 1st District New York

Washington DC Office:

1517 Longworth House Office Building

Washington, DC 20515

(202) 225-3826

East End Office:

30 West Main Street

Suite 201

Riverhead, NY 11901.

631) 209-4235

3. Think about signing this petition from Americans United for Separation of Church and State (AU) to urge the IRS to more aggressively enforce the Johnson Amendment:


About D. Posnett MD

Emeritus Prof. of Medicine, Weill Cornell Medical College
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