The Pulpit Must Remain Free as the Founders Envisioned: We’re Standing with Members of Congress to Tell the Fifth Circuit the IRS Can’t Silence Pastors

For 70 years, the Johnson Amendment has hung over America’s pulpits, a pathway for the IRS to strip a church of its tax-exempt status the moment a pastor applies his faith to the candidates and elections shaping his community.

As we’ve written previously, a federal district court in Texas recently threw out the most significant challenge to that law in decades – not because the Johnson Amendment is constitutional, but on a jurisdictional technicality that let the court dodge the question entirely. The case, National Religious Broadcasters v. Bessent, is now before the U.S. Court of Appeals for the Fifth Circuit, and the ACLJ — joined by U.S. Representatives Jeff Crank (CO-5) and Mark Harris (NC-8), a former Baptist pastor — has just filed an amicus brief urging the court to correct that error.

The Trump Administration has been on the right side of this fight from the start. Rather than defending the Johnson Amendment as written, the IRS agreed with the plaintiffs that when a house of worship speaks to its own congregation about candidates and elections, through its ordinary channels of worship, it does not “participate” in a political campaign by definition.

The district court refused to enter that consent judgment anyway, and in the aftermath, the Treasury Department – with Secretary Bessent affirming that religious liberty is foundational to our Constitution – announced it would move forward with guidance protecting houses of worship regardless.

President Trump has long said pastors should be free to speak to the moral and political questions of the day without fear of losing their church’s tax exemption, and his Administration has consistently backed that principle with action, not just words. Our brief now asks the courts to finish the job the political branches have already started.

Two sitting Members of Congress didn't just watch this fight from the sidelines — they signed on. Congressman Jeff Crank and Congressman Mark Harris, who pastored a Baptist church for years before coming to Washington and is the cosponsor of legislation to limit the Johnson Amendment, joined our brief because they see the stakes from the other side of the equation: as legislators, they have a direct interest in making sure the laws they write are read and applied consistently with the Constitution, and that a jurisdictional technicality doesn't become a permanent shield for an unconstitutional speech restriction.

Our brief makes the case on three fronts.

First, this was never really a lawsuit about taxes. The plaintiffs aren’t asking for a refund or fighting a tax bill – they’re asking the courts to stop the government from enforcing a rule that silences their speech. Calling it a “tax suit” just because it happens to live inside the tax code shouldn’t be enough to close the courthouse doors.

Second, even if you accept the lower court’s framing, the law still allows courts to step in when officials could never lawfully enforce the rule in the first place – and when waiting for a later lawsuit would leave a real, ongoing injury unaddressed. Here, that injury occurs every Sunday when a pastor remains silent. No lawsuit filed years down the road can undo speech that was never spoken.

Third, and most importantly, the Johnson Amendment is unconstitutional on the merits. The government cannot dictate who a church chooses to put in its pulpit. Our brief argues that same logic must extend to what happens once that person is in the pulpit – the government has no more business telling a church what it may preach than telling it who may preach. And churches shouldn’t have to choose between keeping a tax exemption that’s been available to them since the founding of this country and giving up their right to speak on the moral and political questions of the day.

The premise behind the Johnson Amendment – that churches must be walled off from ever discussing politics from the pulpit – is not a Founding-era principle. It is a 1954 invention with no connection to religious liberty. The Founding generation would have found it foreign. Election sermons and sermons on civil authority were central to American public life, the very means by which ministers applied Scripture to questions of tyranny and liberty.

President Calvin Coolidge captured this history in his address marking the 150th anniversary of the Declaration of Independence, delivered in Philadelphia on July 5, 1926:

When we come to a contemplation of the immediate conception of the principles of human relationship which went into the Declaration of Independence we are not required to extend our search beyond our own shores. They are found in the texts, the sermons, and the writings of the early colonial clergy who were earnestly undertaking to instruct their congregations in the great mystery of how to live. They preached equality because they believed in the fatherhood of God and the brotherhood of man. They justified freedom by the text that we are all created in the divine image, all partakers of the divine spirit.

Our Declaration traces directly back to colonial clergy preaching to their congregations. The Johnson Amendment asks us to believe that very kind of speech must now be silenced under threat of financial ruin.

This is not just a church fight. The unconstitutional-conditions doctrine protects any organization – religious or secular – from having a generally available government benefit leveraged to force it to surrender a constitutional right. The principle that chilled speech is itself an irreparable injury, not just speech that’s ultimately punished, protects every regulated American. That two sitting Members of Congress signed our brief is proof this concern isn't confined to the pews — it's shared on Capitol Hill.

And if the government can shield any rule from constitutional review simply by routing it through the tax code, every agency in Washington now has a blueprint – one that reaches far beyond the pulpit. The Johnson Amendment has always rested on a bargain no American should be forced to make: your tax exemption or your voice. The ACLJ will keep fighting until that bargain is off the table – for good.

Sign the petition: Stop the Government’s Gag Order on Pastors.