Donald Trump, the Johnson Amendment, and Church-State Relations

02/06/2017 08:54 pm ET Updated Feb 07, 2018

President Trump's announcement last week at the National Prayer Breakfast that he intends to "destroy" the Johnson Amendment has turned heads in the nation's houses of worship. The Johnson Amendment, enacted in 1954, changed federal tax law to discourage pastors from engaging in partisan political activity. The central concern of the measure's sponsor, then Senator Lyndon Johnson of Texas, was that right-wing pastors would speak from the pulpit against his candidacy for re-election that year, when he faced a challenge from a conservative Democrat in the Texas Democratic senatorial primary. With the passage of the Johnson Amendment, as it became known, engaging in that kind of partisan political activity could lead a church to lose its tax-exempt status. That is, at least in theory, a powerful deterrent because the nation's houses of worship are aided in attracting contributions by having tax-exempt status.

The Johnson Amendment wasn't very controversial when it became law, but it has become more so in recent decades, especially among some of the evangelical churches strongly supportive of the Republican Party. Even so, repeal of the Johnson Amendment was not high on the religious right's list of legislative objectives in 2016. The impetus for this change appears to have come from Donald Trump himself, in response to his discovery that churches of that kind were inhibited by the law in advocating directly for his election. Like some of Trump's earlier remarks in other, related areas, advocating for the end of the Johnson Amendment reflects a view of church-state relations that is different from the one the courts have usually embraced since the 1960's. To President Trump, America is "a nation of believers," whose free-speech rights ought to be sacrosanct.

In the case of the Johnson Amendment, abolishing it might not change as much as Trump or his critics think it would. The Amendment has almost never been enforced by the IRS, even in the law's early years. One of the most famous examples came in October 1960, when Martin Luther King, Sr., the pastor father of the famous civil rights leader, publicly signaled - perhaps unwittingly - his intention to violate the Johnson Amendment. The catalyst for his statement was the reaction of the two major-party candidates for president that year, John F. Kennedy and Richard M. Nixon, to the jailing of Martin Luther King, Jr., for a parole violation. A Georgia judge ordered King sent to a state penitentiary in a remote area of rural Georgia, something that led King's wife, Coretta Scott King, to fear she would never see him alive again. Civil rights leaders associated with King appealed for help. Nixon decided to do nothing, but Kennedy telephoned Mrs. King, pledged his assistance in getting her husband released, and then let the national media know about the call, saying "she is a friend of mine." Kennedy then instructed his brother Bobby to contact the judge and make the case for King's release, given the potential danger to him from other inmates and guards. The judge relented and ordered King released immediately. It is distinctly possible that action saved Martin Luther King, Jr.'s life. It is also possible that the Kennedys' intervention saved another life, in that Coretta Scott King was seven months pregnant at the time, and so upset that some family members feared she might miscarry. For those reasons, Martin Luther King, Jr.'s father, a prominent pastor in Atlanta known informally as "Daddy King," then announced at a mass meeting at Ebenezer Baptist Church that (having earlier decided to vote for Nixon) he was switching to Kennedy. At that meeting, which was reported in both the national print and broadcast media, Daddy King then went on to say that "I've got all my votes and I've got a suitcase [of them, meaning at his church], and I am going to take them up there [the local precinct] and dump them in his [John Kennedy's] lap." This was a hugely consequential action, politically, in that Kennedy had been blacks' least favorite candidate during the Democratic presidential primaries and did not, until that moment, enjoy enthusiastic backing among black voters (most of whom lived in the urban North). It is no exaggeration to say that Daddy King's statement probably altered the outcome of the election, which Kennedy won very narrowly on the strength of a better than 70-30 split among black voters in such key swing states as Illinois and Michigan. (The Kennedy campaign heavily publicized King, Sr.'s remarks, which had a very big impact on black voters' choice in the presidential race.) Even so, the Johnson Amendment was not used against Daddy King's church.

The basic pattern of not enforcing the Johnson Amendment has persisted over the sixty-plus years of its existence. Only once in all that time has it ever been applied to a house of worship. It isn't clear that the Internal Revenue Service (IRS) devotes substantial resources to investigating complaints about Johnson Amendment violations. What the law seems to have done, instead, is to give pastors - who typically don't want to engage in partisan political sermonizing - a persuasive reason for why they don't do so, even when members of the congregation wish they would. (Pastors are usually concerned that partisan political statements from the pulpit could divide congregations.) And so what abolishing the Johnson Amendment would really do, it seems, is to increase pressure on pastors from members of their congregations to make partisan political statements from the pulpit. That is a very unattractive idea to most leaders of the nation's houses of worship, and so such a change in the law is not likely to be supported by most of them. Given that resistance, abolishing the Johnson Amendment seems unlikely to pass in Congress.

What, then, is the real significance of President Trump's recent statement on this subject? More than anything else, it appears to reflect his determination to signal his administration's support for religious institutions generally, even if the specific way of doing that doesn't seem likely to succeed, or, if it does, to produce the outcome he seeks. What Donald Trump appears to want, above all, is to restore the central place of religion in the public sphere, which has seen less of it in recent decades. Finding broadly acceptable ways of accomplishing that goal remains, however, a daunting challenge for him and his supporters.