As previously reported, a Texas federal district, citing the Tax Anti-Injunction Act, refused to enter a consent judgment in a suit by religious groups challenging the constitutionality of the Johnson Amendment. In the appeal of that case to the Fifth Circuit, the Justice Department in a brief filed September 21 (full text) argues:
The Williams Packing test pushes the claim addressed in the proposed consent judgment outside the jurisdiction-limiting gates of the AIA. That test is satisfied if "it is clear under no circumstances could the Government ultimately prevail...,"
In the District Court, the Government agreed that the Johnson Amendment does not reach the speech covered by the proposed consent judgment because “[w]hen a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participate[s]’ nor ‘intervene[s]’ in a ‘political campaign,’ within the ordinary meaning of those words.”... Because the plain terms of the Johnson Amendment do not reach such speech, the church plaintiffs would certainly prevail on the merits in litigation based on enforcement of the Johnson Amendment against this narrowly defined category of speech.....
Moreover, IRS enforcement of the Johnson Amendment against such speech would be constrained by the “church autonomy doctrine,” as interpreted in this circuit....
Based on this precedent, the Government could not prevail in a tax-enforcement action premised on the type of speech described in the consent judgment: “speech by a house of worship to its congregation in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.”... Deciding whether such speech violates the Johnson Amendment, such that a church should lose its tax-exempt status, would require picking apart the religious and political elements of a sermon, which contravenes the church autonomy doctrine.....
Religion News Service reports on the DOJ brief.
