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Supreme Court of the United States

Supreme Court Case Offers Protection for Pastors' Sermons

October 17, 2017

Earlier, Kevin Theriot blogged about the Supreme Court's decision in EEOC v. Hosanna-Tabor.  The case was a phenomenal win for religious freedom and has far-reaching implications.  In analyzing the opinion, one important implication is that the Supreme Court has announced heightened protection for the internal affairs of a church and for situations that affect the faith and mission of the church.

In a court decision from 1990 called Employment Division v. Smith, the Court allowed the government greater latitude to restrict the free exercise of religion.  The Court held in Smith that if a law was neutral as to religion and if it was generally applicable to all people, then the government was allowed to burden the free exercise of religion.  The Smith case marked a drastic departure from the Supreme Court's earlier precedents which uniformly held that any law, even if that law was neutral and generally applicable, could not burden the free exercise of religion unless the law was justified by a compelling governmental interest that was advanced in the least restrictive means available.  This test is the strongest test available under the constitution.  In applying this test over the years, the Court candidly acknowledged that the test was strong medicine and that many laws burdening the free exercise of religion did not meet this test and were invalidated because they violated the Free Exercise Clause of the First Amendment.

Critics of Pulpit Freedom Sunday frequently cite to Smith and say that the Johnson Amendment is a law that is neutral and generally applicable so churches have no valid legal argument that the Johnson Amendment violates the Free Exercise Clause.  The Hosanna-Tabor decision changes that analysis, though.  In Hosanna-Tabor the Supreme Court retreated some from its analysis in the Smith case.  It stated: "Smith involved government regulation of only outward physical acts.  The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself."  Essentially, the Supreme Court created a "church exception" to the Smith case.  This means that a law that may in fact be neutral and generally applicable will now have to meet the pre-Smith compelling interest standard if it interferes with internal church matters that affect the faith and mission of the church itself.  The Supreme Court, in effect, broadened and strengthened the Free Exercise rights of churches.

This is good news for pastors chafing under the unconstitutional restriction of the Johnson Amendment.  What affects the faith and mission of the church itself more than a governmental restriction on a pastor's sermon from the pulpit?  By allowing the government to punish pastors for preaching a certain way from the pulpit, we are allowing the government to drive and change the faith and mission of the church itself.  By allowing the IRS to declare certain topics to be off-limits or to prohibit the application of biblical truth to elections and sermons, we are allowing the government to dictate what the faith and mission of the church is and how it should be applied and proclaimed from the pulpit.

The Hosanna-Tabor case means that the IRS will now have to demonstrate a compelling reason for restricting a pastor's sermon from the pulpit.  They cannot do so.  In fact, there is no legitimate reason for the Johnson Amendment.  And if you take a moment to understand the history behind the adoption of the Johnson Amendment, you'll understand just how true that is.  Hosanna-Tabor is one more indication that the Johnson Amendment is unconstitutional and should be struck down at the earliest opportunity.

Pastors should be encouraged by the Supreme Court's recent decision.  Now is the time to seize the opportunity and reclaim the right of pastors to speak freely from their pulpits without fearing governmental censorship or intimidation.  If you are a pastor, please sign up now to be a part of Pulpit Freedom Sunday.  For everyone else, forward this to your pastor and encourage them to sign up for Pulpit Freedom Sunday as well.  Standing together, we can and will make a difference.

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