Hello, dear readers, your friendly liberal lawyer is back with another guide to the oft-misunderstood first amendment. This week we’ll look at religious free speech, specifically, what clergy can and cannot say and what lines they must not cross.
1. The Basics
As you may remember from my first freedom of speech piece, the first amendment says that an individual has the right to free political speech without fear of government reprisal, sans a few very important restrictions. Because a pastor is an individual, he or she is certainly entitled to those rights. But when they speak on behalf of an organization, that’s where the problems begin. Because churches are federally tax exempt (501c(3)) organizations, the real question is if the church can still claim that status when the pastor’s speech becomes political.
2. The Laws
In addition to the Constitution, Congress passed what we know as the Johnson Amendment in 1954. This is a law that prohibits tax-exempt churches from endorsing or opposing candidates, a violation of which could mean the loss of that 501c(3) status. And because a pastor, minister, or priest is often the head and voice of that organization, it means that they must abide by the Johnson Amendment or risk the tax exemption of the whole congregation.
3. The Conflict
Since the Johnson Amendment was passed, legal scholars have argued over the Constitutionality of it, whether it violates the First Amendment or not. Those against argue that Johnson too severely restricts the pastor/minister/clergy member’s individual rights to freedom of speech. Those in favor of Johnson say that it does not restrict their rights as individuals, just in their capacity as head of the organization. In addition, Johnson is meant to keep messy campaign finance laws a little bit clearer and avoid the messy entanglements of separation of church and state.
4. Can’t Dos
In the most basic sense, political speech by churches and their leaders is only restricted to endorsing particular parties and candidates. In other words, telling people how to vote is a big no-no. Also, they cannot give money to any candidates or political parties, or allow a candidate to use the church to solicit funds on their behalf. If they do, they risk losing their tax exempt status.
5. Can Dos
So what political statements are acceptable? A pastor has every right to personally endorse a party or a candidate only in their capacity as an individual citizen. They can also lobby for legislation and join political parties in their private capacity. In addition, churches as a whole are allowed to encourage participation in the political process as a whole through voter registration drives and distribute non-partisan voter education materials (think the pro-life and anti-gay marriage movements as examples of this).
Ultimately, the Johnson Amendment was created to help keep religious organizations from directly ordering their congregations how to vote, and to maintain some semblance of the separation of church and state both politically and financially. And while academics continue the discussion about its constitutionality, it has been the law for almost 60 years.
Have a question about the First Amendment or the Constitution? Let me know!
Feature image via YouTube screengrab