Repealing the so-called Johnson Amendment — a tax code provision that bars churches and other nonprofits from endorsing political candidates — has become something of a banner issue for Republicans in 2017.
President Donald Trump attempted to weaken the provision in an executive order earlier this year, and GOP House members have since launched a stealth campaign to use a spending bill to defund efforts to enforce the policy against churches. This in addition to a separate piece of legislation introduced in February that would rewrite the law, and the president’s repeated promise to “totally destroy” the statute.
The effort worries some legal experts who say altering the Johnson Amendment could expose churches to political manipulation, as it would potentially eliminate the difference between a church and a Super PAC. The push also appears somewhat counterintuitive: The law is rarely enforced, and polls show politicizing churches is deeply unpopular with most Americans — including people of faith.
So where did the campaign to let pastors openly back politicians come from? There are many theories, but almost all of them involve the same man: newly minted Trump lawyer Jay Sekulow.
The Brooklyn-born, gaffe-prone attorney’s opposition to the Johnson Amendment can be traced all the way back to the 1990s, when he represented the only church in three decades known to have lost its tax-exempt status for violating the law.
It’s historically very difficult for a house of worship to face action from the IRS, but when the Church at Pierce Creek, New York took out a full-page ad in USA Today attacking then-Gov. Bill Clinton shortly before the 1992 election, the IRS responded by revoking the faith community’s tax-exempt status. The church sued in response, and looked to the right-wing legal firm American Center for Law and Justice (ACLJ) — founded by Religious Right paragon Pat Robertson — for representation. Sekulow was an attorney at the firm, and ended up leading the legal team on the case.
Some of the arguments he made in court were technical, but others may sound familiar to observers of right-wing litigation efforts. Sekulow and his team purported, for instance, that revoking the church’s tax-exempt status violated the members’ right to freely exercise their religion as guaranteed by the First Amendment and the Religious Freedom Restoration Act — the same law that helped craft giant Hobby Lobby garner an exemption from Obamacare’s contraception mandate. He also contended the church was unfairly targeted because of its religious beliefs, an argument echoed by present-day evangelicals who insist white evangelicals are a persecuted group in American society.
But District Judge Paul Friedman was having none of it. He ruled against the church on all counts in 1999, letting the revocation of their tax-exempt status stand.
Sekulow appealed the case, telling the New York Times he still believed the church’s advertisement constituted a form of “protected speech.” But the appeals court judge disagreed, letting the previous decision stand and ending the case’s run.
The right-wing lawyer’s vocal distaste for the 63-year-old statute didn’t die with the judge’s ruling, however. Instead, Sekulow — who converted from Judaism to evangelical Christianity after encountering Jews for Jesus when he was 18 — maintained vocal opposition to the amendment throughout his career. He invited GOP lawmaker Rep. Walter Jones onto his radio show in 2002 to discuss the Houses of Worship Political Speech Protection Act, one of the earliest legislative attempts to grant churches an exemption from the Johnson Amendment (it failed). And in 2011, he posted a lengthy diatribe against the prohibition on the ACLJ website.
“IRS is stifling the free speech rights of religious leaders in a world where most Americans understand that the intersection of faith and politics is a well-recognized part of this nations culture and heritage,” he wrote. He went on to claim that the law “makes no sense,” “censors pastors in the pulpit,” and “turns the IRS…into the speech police.”
Sekulow concluded by suggesting that Congress is “considering” a law to change the provision, adding, “The time has come to give religious leaders unbridled free speech.”
His optimism turned out to be premature. But Trump’s presidency has perhaps renewed his hopes. He repeated some of his well-worn talking points in January during an interview with the Christian Broadcasting Network, saying, “The Johnson Amendment, basically, was a muzzle on the first amendment rights of churches.” He also lauded the introduction of the Free Speech Fairness Act in Congress, saying the bill — designed to remove the Johnson Amendment’s restrictions on churches — will “restor[e] the Free Speech rights to churches where it already belongs.”
Now that Trump is president, he said, lobbyists and advocates like him — spurred, in large part, because of his own advocacy — are primed to finally eradicate the Johnson Amendment once and for all.
“2017 is going to be the year it goes,” he concluded.