The "Johnson Amendment," now codified as part of 26 U.S.C. sec 501(c)(3), states that a tax-exempt organization may not "participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." This past Sunday, the "Pulpit Initiative" of the Alliance Defense Fund urged ministers around the country to violate the Johnson Amendment by endorsing political candidates from the pulpit. The campaign is formally neutral, but the ADF is a conservative Christian ally, and so the pastors that challenged the Johnson Amendment apparently did so by endorsing McCain or attacking Obama.
Supporters of the Pulpit Initiative argue that the government has no authority to censor religious leaders. Defenders of the law counter that pastors who want to endorse a political candidate can do so on their own time or, if they want to do so on behalf of their church, can do so without receiving a federal subsidy (via the tax exemption and the tax deductibility of donations). I may have more to say about this subject in my FindLaw column for next week, but for now I'll just make the core points, leaving the bulk of the argument and the citations for later.
1) The pastors invoke the long tradition of religious leaders involved in social and political campaigns, including the abolitionist movement, the temperance movement, and the civil rights movement. Yet there is no plausible claim that the Johnson Amendment violates free exercise of religion, because it does not single out religious speech; it applies to all non-profit organizations eligible for tax exemption.
2) There is also no good free speech claim here, because tax-exempt status is a kind of subsidy, and the governing case law provides that government may insist that, in exchange for receipt of federal funds, an organization not engage in political activities.
3) Some people have defended the Pulpit Initiative on the ground that the Johnson Amendment violates the Establishment Clause because enforcing it against churches requires excessive entanglement between church and state: The government must monitor what pastors say from the pulpit. This is not a trivial concern, but given the fairly bright line of the Johnson Amendment, the amount of monitoring seems minor. Mostly, the effect of the monitoring issue is that pastors who don't deliberately challenge the IRS can probably avoid sacrificing the tax-exempt status of their organizations.
4) People speaking on behalf of Americans United have sometimes suggested that the Johnson Amendment is itself required by the Establishment Clause. This too seems wrong. If the government did not forbid partisan political activity by non-profits, the government would not itself be endorsing the political statements of any religious leaders. More to the point, perhaps, the Establishment Clause is not concerned with government endorsement of political leaders; it's concerned with government endorsement of religion. Thus, if there's an Establishment Clause problem here, the problem is that religious organizations qualify as charitable organizations when engaged in religious activities, not when they engage in secular political ones. Yet no one is proposing the elimination of the tax-exempt status of all religious organizations---and such a proposal itself would be problematic as discriminating against religion.
5) Finally, although Supreme Court doctrine about the government's ability to attach strings to funds suffices to dispose of the pastors' free speech claim (see 2 above), we liberals should be at least a little uneasy about relying on this notion that the government piper gets to call the tune. Liberals have been unhappy with the abortion gag rule and with the Solomon Amendment. With respect to the latter, a great many liberal legal academics argued that universities should be able to take government money but not have to convey the government's anti-gay message. (The Supreme Court disagreed. The Court's unanimous decision in Rumsfeld v. FAIR avoided the funding issue by holding that the Solomon Amendment did not even require universities that took the money to convey the government's message in a way that would be attributed to the universities.)
Posted by Mike Dorf