The case Donald Trump made on Thursday afternoon to a gathering in Orlando of around 700 conservative Christian pastors and their spouses is one he has relied on throughout this campaign in reaching out to evangelicals. The federal government, Trump argues, has effectively muzzled religious conservatives — and he alone can save them.
“You’re the most powerful lobby there is,” Trump told the American Renewal Project, an effort to get conservative pastors more involved in politics, even as candidates. “Yet you’ve been totally silenced, like a child has been silenced.”
It was the same message he delivered to evangelicals in his acceptance speech last month at the Republican National Convention: “You have so much to contribute to our politics, and yet our laws prevent you from speaking yours minds from your own pulpits.”
What Trump is talking about is something called the “Johnson Amendment,” a change to the U.S. tax code that was proposed by then-Sen. Lyndon Johnson in 1954 to prohibit tax-exempt organizations from endorsing or opposing political candidates. Some, but not all, religious institutions claim tax-exempt status and are therefore technically required to abstain from using their resources on behalf of candidates.
Over the past decade, political speech has become a rallying point for many conservative Christians, including the group Alliance Defending Freedom, which encourages pastors to engage in “civil disobedience” to challenge the tax code. Given Trump’s ongoing campaign against political correctness, as well as concerns among conservative Christians over his bona fides on other issues, like abortion and same-sex marriage, it’s no surprise that he made free speech for pastors his main appeal to that constituency.
There’s only one problem: Pastors and other religious leaders can, and do, already engage in political speech, including candidate endorsements.
The fact is that no U.S. law prevents church leaders from endorsing candidates. What the law does not allow is endorsing on behalf of a church or using church resources — such as making an endorsement from the pulpit during Sunday services — while also claiming tax-exempt status.
Church leaders can even endorse using church resources at any time; they are simply expected to forgo their tax-exempt status in order to do so. The First Amendment protects freedom of speech and free exercise of religion, but it does not provide a constitutional right to tax-exempt status.
Perhaps the best rebuttal to the idea that religious leaders operate under a clergy “gag” law is the fact that the Johnson Amendment is currently unenforced. So regardless of whether a pastor follows the tax code by separating his personal endorsements from his role with a church, the IRS is not investigating or penalizing churches for political speech.
In fact, the most prominent recent example of a pastor’s free speech may be the benediction delivered by Pastor Mark Burns at last month’s RNC, the most explicitly political prayer ever offered at a party convention. In his prayer, Burns declared Democrats to be “our enemies” and praised God for “giving [Trump] the words to unite this party, this country, that we together can defeat the liberal Democratic Party.”
Every fall since 2008, Alliance Defending Freedom has urged pastors around the country to observe Pulpit Freedom Sunday by preaching openly political sermons and sending copies of those sermons to the IRS — in effect, baiting the IRS to come after them. So far, they’re still waiting.
You’d have to go back to 2006 to find the last significant instance of the IRS investigating a church for political speech. In that case, it was the Bush administration’s IRS and the church in question was a liberal Episcopal congregation in Pasadena that was probed after a guest preacher delivered a sermon questioning the Iraq War.
According to the Alliance Defending Freedom’s own numbers, more than 2,000 pastors connected to the group have reported preaching political sermons since 2008. Yet none of them has been probed by the IRS for political activity or had tax-exempt status revoked.
In one particularly memorable example from 2004, a Baptist pastor in North Carolina told his congregants that if they voted for John Kerry, they needed to “repent of their sin” or resign their church membership. Nine members were ultimately voted out of the church. But while the pastor himself ended up resigning because of the controversy caused by his leadership, the IRS never got involved.
None of this will come as much of a surprise to the nearly two-thirds of American churchgoers who report hearing their clergy discuss political issues, in the latest survey from the Pew Research Center. Despite the old social rule that one should never discuss religion and politics in polite society, Americans have rarely shied away from combining the two subjects.
Nonetheless, Trump told religious leaders in Orlando on Thursday afternoon that in order to protect their own freedom of speech, they “really now have a one-time shot.” If he is not elected, Trump warned, “you are never going to have a chance again.”