Known colloquially as the Johnson Amendment, this action by Congress added wording to IRS code Section 501(c)(3) intending to disallow nonprofit organizations from deeply engaging in political activity. This amendment was conspicuously promised to be removed, by President Trump in his Republican Convention acceptance speech, “I am going to work very hard to repeal that language and to protect free speech for all Americans.” This amendment was requested in 1954 by then Senator Lyndon Johnson and was passed without discussion. It has remained a permanent part of the tax code ever since.
Considering the difficulties in fulfilling President Trump’s major promises as of this writing, we may never see this change in law actually happen. He did recently make a first attempt to alleviate this restriction using an executive order. But, as the order states, “Secretary of the Treasury shall ensure, to the extent permitted by law…”, Only Congressional action can eliminate the responsibility to enforce the Johnson Amendment.
Although freedom of religion and speech may be as, or more, important to continued civilized human life than the necessities of a job or of health care, it has obviously become a less important goal for all the current politicians of our country. But, this tax law amendment was only enacted to dilute our first Constitutional amendment to appease the anti-federalists of the time of our founding. Somewhat the same situation we find ourselves in today, with almost half of the country wanting federal control over major and even the tiniest aspect of our lives; the encouragement and payment to abort babies and how much protein is in a can of yellow hominy.
American Freedom of Religion and Speech
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech,…” (First amendment to our Constitution)
I have an advantage of not being a lawyer in discussing this small piece of American law (the Johnson amendment) that has had a large effect. My approach is to understand the effect of this law on religion without getting lost in the weeds of minutiae. I share that distinction (and not any others) with other Americans who are considered to be Founding Fathers: Benjamin Franklin, Alexander Hamilton, and James Madison who introduced the Bill of Rights to Congress for acceptance – The first rights in the bill being the freedoms of religion, speech, press, assembly, and petition.
The 1983 Bob Jones University vs. The United States case upheld the action of the Internal Revenue Service to revoke the University’s tax-exempt status under this amendment. Chief Justice Burger wrote the Supreme Court’s opinion citing a previous case standard, “Bob Jones University did not meet this requirement, since its racial policies violated the clearly defined public policy, rooted in our Constitution, condemning racial discrimination and, more specifically, the government policy against subsidizing racial discrimination in education, public or private.” (italics mine).
I wish to make it clear that the racial discrimination as was practiced by Bob Jones is also clearly NOT supported by Catholic doctrine that recognizes one group of persons, whether unborn or of differing physical features. This case, however, does illustrate government thinking on the two major points italicized:
- That public policy can (and did) override religious doctrine.
- Tax-exemption is considered a subsidy.
What Are the Courts Thinking?
Justice Rehnquist dissented in this case writing, among finely nuanced references to law saying plainly, “But simply because I reject the Court’s heavy-handed creation of the requirement that an organization seeking 501(c)(3) status must “serve and be in harmony with the public interest,”
In the Bob Jones case, the problem as not a life and death issue or even a safety issue. It had to do with the school’s admissions policy. The school “…denies admission to applicants engaged in an interracial marriage or known to advocate interracial marriage or dating .” The clear issue to the court was not that a person denied admission because of this rule was denied an education (how many of us have even heard of this school), but that the state (and much of the public) wished to force the school and any other persons to accept interracial marriage. This was clear in the Burger opinion:
Bob Jones University did not meet this requirement, since its racial policies violated the clearly defined public policy, rooted in our Constitution, condemning racial discrimination and, more specifically, the government policy against subsidizing racial discrimination in education, public or private.
An attempt to define the will of the state as superior, not because of it’s superior ability to discern truth, but because of its possession of the power to impose.
As Catholics, we may agree that the state, in this case, had a superior moral authority. But, this is only a coincidence of right thinking. If the righteousness of the thinking by Congress and the Supreme Court was brought about by Christian thought, we can celebrate, but we are still left with the aspect of compelling morality by the state. Not any morality, but the morality that has little or no effect on an individual by non-compliance.
We see a parallel today in cases dealing with same-sex marriage. These involve wedding cake makers, photographers, and florists refusing to take part in same-sex weddings by selling their goods to those kinds of “couples”. There is no shortage of cake bakers or photographers or florists in our country. These cases again, have a clear purpose of imposing a morality upon an unwilling population by those in power. They also show us that the power of the state has overridden the first amendment to the Constitution to be in harmony with the public interest – actually only some of the public.
These two situations separated in time and circumstance, illustrate that it is unwise to grant the state the power to coerce where there is only a desire for a change of morality or ethics. The morality chosen will be dictated by majority vote, super-majority vote, or regulation that is not necessarily debated as rigorously as a bill is debated. In our continuing “progressive” society, religion is not a factor.
Subsidy as a Weapon
Pope Pius XII spoke to a convention of Italian jurists (Ci Riesce) in 1953 saying:
Above all, it must be clearly stated that no human authority, no state, no community of states, whatever be their religious character, can give a positive command or positive authorization to teach or to do that which would be contrary to religious truth or moral good. Such a command or such an authorization would have no obligatory power and would remain without effect. No authority may give such a command, because it is contrary to nature to oblige the spirit and the will of man to error and evil, or to consider one or the other as indifferent. Not even God could give such a positive command or positive authorization, because it would be in contradiction to His absolute truth and sanctity.
It is not the states’ function to teach God’s word, it is the Church’s function above the state. The state is ruled by persons who have come into being through the benevolence of God himself. To then pretend to be able to overrule God is not only illogical but as was explained in Genesis 3, foolish. This is the reason for independence from state interference in Church activities and mission.
When the state through its courts say that tax exemption is a subsidy, they are saying that the Church is not independent but is allowed to exist be the cause of state benevolence. Independence means that this portion of public activity should be recognized as having an existence of its own and is not subordinate. Taxation can then be carried out by entities and individuals that are subordinate to it. The Church’s members will contribute taxation as general members of a country through business or as individuals or both.
The only way state interference in Church activities should exist is “Provided the just demands of public order are observed.” This thought was stated several times in Dignitatis Humanae by Pope Paul VI in 1965 writing on religious freedom. He also wrote in the same Declaration:
This independence is precisely what the authorities of the Church claim in society. At the same time, the Christian faithful, in common with all other men, possess the civil right not to be hindered in leading their lives in accordance with their consciences. Therefore, a harmony exists between the freedom of the Church and the religious freedom which is to be recognized as the right of all men and communities and sanctioned by constitutional law.
What Can We Do?
The initial reason for injecting these few lines of tax law, or any other legal statements from our legislatures, always starts with a perceived need – either personal or public. What we must do, is ensure that our leaders understand what our founders understood, that obedience to God is our first duty. Obedience to each other flows from that.