‘Threat is existential’: Fight for speech rights for churches just moved to higher level

The battle in America’s federal courts for speech rights for Christian churches has just moved up a level after a trial court dismissed an entire case, in which both sides already has reached agreement, on a technicality.

It is the American Center for Law and Justice, which has been involved in this fight for many years already, that cited a district court’s decision just days ago to dismiss the case.

The challenge had been brought by the National Religious Broadcasters, Sand Springs Church, First Baptist Church Waskom, and Intercessors for America in court in Texas arguing that the Johnson Amendment – as applied to their faith-based speech to their own congregations – violated the First Amendment’s free speech and free exercise protections, the Fifth Amendment’s due process and equal protection guarantees, and the Religious Freedom Restoration Act.

The ACLJ promised to continue pursuit of that constitutional goal after the Texas court “refused to enter the consent judgment and dismissed the case without prejudice. His reasoning: Because the Johnson Amendment is tied to tax-exempt status, any court order affecting its enforcement would impact tax collection – something the Tax Anti-Injunction Act (AIA) and Declaratory Judgment Act (DJA) prohibit federal courts from restraining. Even with both parties in agreement, the court claimed it lacked jurisdiction.”

There already had been significant advances made in the case.

The Johnson Amendment is a law that for 70 years has been used to silence pastors. Tucked inside the federal tax code, it threatens that the Internal Revenue Service could strip churches of their tax-exempt status, injuring both them and their donors, if they “participate” in any political campaign for or against any candidate.

“In plain terms: If a pastor speaks from the pulpit about a candidate, the IRS can revoke the church’s tax exemption and its donors’ deductions. For most churches, that threat is existential,” the ACLJ said.

The result is that the threat has coerced churches into silence on issues like life, marriage, religious liberty and more.

The ACLJ reported, “When the IRS threatens to revoke a church’s exemption because of what a pastor says from the pulpit, it violates the First Amendment – full stop. As we have argued for years, the Johnson Amendment doesn’t even need to be actively enforced to do its damage. The mere threat of enforcement is enough to silence a pastor who would rather say nothing controversial than put his church’s finances at risk. The chilling effect is the enforcement mechanism. And it is unconstitutional.”

What already had happened in the case has been described as unusual.

In 2025, the IRS ended its fight against the case.

“Under the Trump administration, the government agreed to a proposed consent judgment with the plaintiff churches, conceding that when a house of worship speaks to its congregation about candidates and elections – viewed through the lens of religious faith, in connection with worship services, through its customary channels of communication – it does not ‘participate’ or ‘intervene’ in a political campaign,” the ACLJ explained.

“The government further acknowledged that applying the Johnson Amendment to such speech would create serious tension with the Establishment Clause, because it would treat churches that speak differently from churches that stay silent.”

The resolution of the case, however, was blocked by the judge’s dismissal.

But the judge’s opinion is “deeply flawed,” the ACLJ noted.

“The court says churches cannot seek relief before enforcement because the Johnson Amendment is a tax condition. Yet it also acknowledges that the only alternative becomes available after the IRS makes an actual adverse determination against a church’s tax-exempt status – and any refund claim only arises after taxes have actually been collected,” the ACLJ explained.

It said it’s goal ultimately is for the Johnson Amendment to be struck down or repeated.

Earlier in the fight, the ACLJ said the government confirmed churches could “endorse political candidates to their congregations without risking the loss of their tax-exempt status.”