At this year’s State Bar of Arizona Convention, Secular AZ and the Religious Liberty Law Section co-sponsored the panel From Pulpit to Precedent: The Johnson Amendment on Trial.
For seventy years, the Johnson Amendment has prohibited churches and nonprofits from endorsing candidates. Rarely enforced but often debated, the Amendment continues to raise questions about free speech, free exercise, church autonomy, campaign finance, dark money, tax privileges, and the boundaries of church-state separation. Today, courts, the IRS, and litigants on all sides are still testing its limits, creating ongoing uncertainty about how the rule will be interpreted and applied.
Dianne Post, Secular AZ Legal Director, summarizes the experience.
When I pulled in, I thought I had the wrong place because the parking lot was so empty. I went to our room and while another seminar was going on (disability hiring), they only had 4 people. So I didn't feel bad when we had 24, which is more than last year when we had 18.
Our moderator pulled out the day before because she had to fly back to her mother's due to a medical emergency. So the co-sponsor (Religious Liberty Section of the State Bar) and I winged it. I had planned to open and she was closing so we just kept that system and then divided questions back and forth. As it turned out, we didn't need to do any questioning as the audience had enough questions and discussion to keep us going for the full time.
Ferris from the National Broadcasters spent most of his time talking about history, culture, and the hot button issues that cause the most division. He went on and on about unequal enforcement against Republicans when the facts show lack of enforcement against everyone is the norm.
One of the audience members pushed back significantly on that and brought up Dream City and its frequent rallies for Trump and Lake. Ferris didn't talk about the law much, because he has no law on his side.
At one point Ferris was ranting on and on about how much good churches have done ,e.g. in the civil rights movement and abolition. I had to interrupt him and say, but some churches did just the opposite and that has nothing to with today's topic. The Johnson Amendment does not prohibit churches from advocating for causes, only for candidates, and that is a very different thing.
Elias Daiute from Americans United for the Separation of Church and State spoke for our side and did a great job, but an even better job in the Q&A. He focused on the law and why abolishing the Johnson Amendment would be bad. He had been afraid we would not be able to cover the 90 minutes but he was wrong. I was never worried about that. We could have gone on another two hours.
Panel participants
The out-going head of the Religious Liberty Section of the Bar asked if it wasn't a violation of free speech to prohibit churches from endorsing candidates from the pulpit, though they get a tax break for being churches. Daiute used the following example: what if I said “I will buy your lunch today so long as you don't order a burger because I'm a vegetarian.” Would I be limiting your ability to get a hamburger for lunch? Of course not, I'm just not going to pay for it. You can say no and order what you like. But if you take the benefit, you take it with the conditions.
Ferris kept arguing that different 501(c ) categories (3, 4, 5, 6) have different tax structures. So what? If Congress sets up a program with different categories, restrictions, and benefits, they can do that.
It is for you to choose what you want. But if you choose this one, then you live by those regulations. He emphasized that the 501(c) groups are to do good. Booker Evans, a seasoned civil rights lawyers, asked what good the KKK did as they are a 501(c)6. That knocked him back a few steps.
It seemed like the Alliance Defending Freedom people (of which my co-chair is an employee) sat mostly on my right and those in our camp sat mostly on the left and we were quite equally balanced. Ferris got a kick out of the fact Elias and I sat to his right - i.e. to have AU and Secular AZ "on the right" would not be expected. I told him we did it deliberately.
See, lawyers have a sense of humor!
