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Supreme Court of the United States

The Johnson Amendment is a "Fat Opossum"

October 17, 2017

Many of you know by now that ADF's Pulpit Initiative is a legal challenge to the constitutionality of the Johnson Amendment.  I had the pleasure of speaking recently to some West Virginia attorneys at a CLE presentation where I spoke about the U.S. Supreme Court's recent decision in Citizens United v. FEC and what impact that case may have on the constitutionality of the Johnson Amendment (more to come on that in later posts).  As part of the presentation, I spoke on the history of the Johnson Amendment and how Lyndon Johnson got his amendment to the tax code passed with no legislative analysis, no committee hearings, and no debate.  After the presentation, a professor at a local university told me that in West Virginia, what Johnson did with his amendment to the tax code would have been called a "fat opossum" because it snuck through under cover of darkness.  That's a perfect tag line for the Johnson Amendment.

James D. Davidson, a professor at Purdue wrote an article in the Review of Religious Research (excerpt here) that should be required reading for all pastors.  In his article, he explores the political realities of the 1954 U.S. Senate election in Texas that led to the adoption of the Johnson Amendment.  After reviewing the legislative and political history of the Johnson Amendment, Davidson concludes:

The ban on electioneering has nothing to do with the First Amendment or Jeffersonian principles of separation of church and state.

Davidson is right.  He details in the article how Johnson was motivated to propose his amendment to the tax code as a means of silencing two powerful secular non-profit organizations (Facts Forum and the Committee for Constitutional Government) that were opposing his candidacy for the U.S. Senate because they believed he was soft on communism.  Davidson states:

The ban on electioneering is not rooted in constitutional provisions for separation of church and state.  It actually goes back to 1954 when Congress was revising the tax code, anti-communism was in full bloom, and elections were taking place in Texas.  In this highly-charged political environment, Lyndon Johnson introduced an amendment banning section 501(c)(3) tax-exempt orgaizations from participating in "any political campaign on behalf of any candidate for public office."  . . .  Johnson was not trying to address any constitutional issue related to separation of curch and state; and he did not offer the amendment because of anything that churches had done.  Churches were not banned from endorsing candidates because they are religious organizations; they were banned because they have the same tax-exempt status as Facts Forum and the Committee for Constitutional Government, the right-wing organizations that Johnson was really after.

The Johnson Amendment is a big fat opposum.  It was a bill that got inserted into the tax code through back-room deals made by a powerful Senator who wanted to be able to seek reelection at any cost and, in the process, trampling freedom of speech and the free exercise of religion.  We have grown up with a generation of chuch-goers that believe it is illegal for their pastor to address candidates and elections in light of Scripture or church doctrine when there is no valid justification for believing that.

The Johnson Amendment was unconstutional when it was passed and it is unconstitutional now.  It's high time that we shined the light of the Constitution on this particular fat opposum.

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Alliance Defending Freedom

Alliance Defending Freedom

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Alliance Defending Freedom advocates for your right to freely live out your faith

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