Court Throws Out Johnson Amendment Case on a Technicality – But Fight for Pastors’ Free Speech Is Far From Over

A federal court just dismissed the most significant legal challenge in decades to the Johnson Amendment – the unconstitutional law that has been used by the IRS to silence pastors for 70 years. But the court didn’t rule on the merits. It never ruled that the Johnson Amendment is constitutional or that the government has the right to gag churches. Instead, it sidestepped the issue on a tax procedural technicality to avoid the question entirely – leaving churches exactly where the government has always wanted them: afraid to speak. The ACLJ believes this ruling is wrong. And we intend to fight back.

The Johnson Amendment is a provision tucked inside the federal tax code – 26 U.S.C. Section 501(c)(3) – that strips churches or religious nonprofits of their tax-exempt status if they participate in or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office. In plain terms: If a pastor speaks from the pulpit about a candidate, the IRS can revoke the church’s tax exemption and its donors’ deductions. For most churches, that threat is existential.

For seven decades, pastors across America have self-censored. Churches have gone silent on issues such as life, marriage, religious liberty, and the moral character of those who seek to govern us. Not because they believed remaining silent was the right move, but because they feared losing everything. As my dad, ACLJ Chief Counsel Jay Sekulow, once stated:

On one hand, the IRS says it’s permissible for religious leaders to discuss important issues of public policy (as they should), but are prohibited from supporting or opposing a candidate who takes positions on those issues. That’s absurd. The prohibition makes no sense and has far-reaching implications. It censors pastors in the pulpit. And it turns the IRS, which was originally designed to collect revenue for the general treasury, into the speech police.

When the IRS threatens to revoke a church’s exemption because of what a pastor says from the pulpit, it violates the First Amendment – full stop. As we have argued for years, the Johnson Amendment doesn’t even need to be actively enforced to do its damage. The mere threat of enforcement is enough to silence a pastor who would rather say nothing controversial than put his church’s finances at risk. The chilling effect is the enforcement mechanism. And it is unconstitutional.

In August 2024, National Religious Broadcasters, Sand Springs Church, First Baptist Church Waskom, and Intercessors for America filed suit in the U.S. District Court for the Eastern District of Texas. They argued that the Johnson Amendment – as applied to their faith-based speech to their own congregations – violated the First Amendment’s free speech and free exercise protections, the Fifth Amendment’s due process and equal protection guarantees, and the Religious Freedom Restoration Act.

Then, in July 2025, something remarkable happened: The IRS did not fight back. Under the Trump Administration, the government agreed to a proposed consent judgment with the plaintiff churches, conceding that when a house of worship speaks to its congregation about candidates and elections – viewed through the lens of religious faith, in connection with worship services, through its customary channels of communication – it does not “participate” or “intervene” in a political campaign.

The government further acknowledged that applying the Johnson Amendment to such speech would create serious tension with the Establishment Clause, because it would treat churches that speak differently from churches that stay silent.

Both parties agreed. Both parties asked the court to enter judgment and provide relief. It should have been a historic win for religious freedom.

However, on March 31, the court refused to enter the consent judgment and dismissed the case without prejudice. His reasoning: Because the Johnson Amendment is tied to tax-exempt status, any court order affecting its enforcement would impact tax collection – something the Tax Anti-Injunction Act (AIA) and Declaratory Judgment Act (DJA) prohibit federal courts from restraining. Even with both parties in agreement, the court claimed it lacked jurisdiction.

The result is deeply flawed. The court says churches cannot seek relief before enforcement because the Johnson Amendment is a tax condition. Yet it also acknowledges that the only alternative becomes available after the IRS makes an actual adverse determination against a church’s tax-exempt status – and any refund claim only arises after taxes have actually been collected.

In other words, under this logic, a church can only vindicate its First Amendment rights by first suffering the very injury it is trying to prevent: losing its tax-exempt status, watching donors lose their deduction, or being financially destroyed by a tax assessment.

As we’ve explained before:

The ACLJ has been at the forefront of defending religious liberty for decades. We have consistently argued that the Johnson Amendment, as applied to churches, violates the First Amendment’s protections for religious speech and the free exercise of religion.

The ACLJ is proud to have represented one of the only churches to face tax revocation pursuant to the unconstitutional Johnson Amendment in Branch Ministries v. Rossotti. That decision represents a chilling precedent that reinforced fears of tax exemption loss, fears which silenced churches and religious organizations from speaking prophetically to moral issues during election seasons. It demonstrated how the government can weaponize tax policy to suppress religious speech and coerce churches into abandoning their prophetic calling to address the moral issues of our time. The ACLJ stood firm on the conviction that the First Amendment prevented the government from telling churches how to operate. Those arguments have now, after years of legal battle, found recognition by the IRS.

Our legal team has worked tirelessly to challenge unconstitutional restrictions on religious expression . . . .

And we will never stop arguing that using the tax code as a gag order on pastors is unconstitutional.

Here is what has not changed after this ruling: The IRS, under the current Administration, has gone on the record admitting that faith-based speech by a pastor to his congregation – even about candidates and elections – does not violate the Johnson Amendment as properly understood. That concession is in the court record. It will be cited by churches in every future dispute. No dismissal erases it.

What churches need is not a favorable enforcement policy – they need the Johnson Amendment struck down as unconstitutional, or repealed by Congress. We will continue to monitor this case, file an amicus brief on appeal, and advocate in Congress for a full repeal of the Johnson Amendment. The First Amendment does not carry a tax exemption exception. The government cannot condition religious freedom on silence. And no procedural ruling by a single district court judge will change that truth.