The Internal Revenue Service has reached a settlement, subject to court approval, that would permit political speech in houses of worship.
Background
Section 501(c)(3) of the Internal Revenue Code defines an organization exempt from federal income tax to include one that is organized and operated exclusively for religious purposes, “no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does 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.” The language that is italicized is referred to as the Johnson Amendment, and is designed to prevent tax-exempt charitable organizations, including churches and other houses of worship, from directly or indirectly engaging in political activities.
In 2024, the National Religious Broadcasters and Intercessors for American and certain churches filed a lawsuit against the Internal Revenue Service alleging that the Johnson Amendment “facially and as applied violates their First Amendment rights to the freedom of speech and free exercise of religion, their Fifth Amendment rights to due process of law and equal protection under the law, and the Religious Freedom Restoration Act.” On July 7, 2025, the parties to the lawsuit filed a joint motion for entry of a consent judgment with the United States District Court for the Eastern District of Texas to resolve all claims in the lawsuit. National Religious Broadcasters et al. v Billy Long, in his official capacity as Commissioner of the Internal Revenue Service, et al., Docket No. 6:24-cv-00311-JCB (E.D. Tex Jul 7, 2025).
Agreement of the Parties Regarding Interpretation of Johnson Amendment
In the Motion for Entry of Consent Judgment, the parties agree to the following interpretation of the Johnson Amendment:
When a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither “participate[s]” nor “intervene[s]” in a “political campaign,” within the ordinary meaning of those words. To “participate” in a political campaign is “to take part” in the political campaign, and to “intervene” in a political campaign is “to interfere with the outcome or course” of the political campaign. . . Bona fide communications internal to a house of worship, between the house of worship and its congregation, in connection with religious services, do neither of those things, any more than does a family discussion concerning candidates. Thus, communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.
Interpretation Consistent with IRS Practice and Executive Order 13798 (May 9, 2017)
This interpretation of the Johnson Amendment is consistent with the IRS’s treatment of the Johnson Amendment in practice, and in compliance with Executive Order 13798, which provides, in part:
All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.
Conclusion Regarding Johnson Amendment
The conclusion regarding the Johnson Amendment is that “the Johnson Amendment does not reach speech by a house of worship to its congregation, in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.”
Given the agreed-upon interpretation of the Johnson Amendment, the IRS is unlikely to challenge speech that occurs within a house of worship. It is less clear how the IRS will treat speech that occurs outside a house of worship. Negative campaign ads sponsored and paid for by a house of worship that target the general public and are designed to influence votes likely would be subject to the prohibition of the Johnson Amendment. The devil lies in the details of the circumstances surrounding the political speech.
