In 1954, Senator Lyndon Johnson convinced Congress to amend the tax code to prohibit nonprofit organizations from supporting political candidates. He did so to stifle two secular nonprofits opposing his reelection. But the Johnson amendment inadvertently applied to religious institutions as well, raising a serious threat to religious liberty.

Donald Trump has promised to repeal the Johnson amendment. His motivations behind this promise are murky, but whatever they may be its repeal would be welcome as a major gain for religious freedom. It would also respect the important historical role that clergy have played in the political arena.

Religion and politics go together like peanut butter and jelly

It is often said that religion and politics do not mix. Yet despite the common assertion that clergy should not be involved in politics, they have been since America’s earliest days. In the Founding Era, ministers encouraged their parishioners to oppose infringements on their rights by Parliament and the King. In the nineteenth century, they were powerful opponents of slavery.  More recently, clergy were the most significant leaders of the Civil Rights Movement. In each of these cases, ministers regularly preached against what they perceived to be societal and political evils. They did so in the public square and from the pulpit.

In 1917, Congress recognized the importance of voluntary, nonprofit organizations—including churches—by making donations to them tax deductible. Both the national and state governments routinely exempt such organizations from most taxes.

This is good public policy. Nonprofit organizations often offer services such as education, health care, and poverty relief that would otherwise be provided less efficiently and at greater cost by governments.

Churches, synagogues, mosques, and temples sometimes offer such services, but many of them would contend that their primary mission is to provide a space where congregants can worship and be taught. The First Amendment should protect their ability to do so without interference by government agents.

With the rise of the modern administrative state, the regulation of churches and clergy was virtually inevitable. In 1934, Congress stipulated that “a substantial part of a [nonprofit] organization’s activities” could not involve attempting to influence legislation. It did so at the behest of Senator David Reed (R-PA), who was attempting to silence a nonprofit organization that was opposing one of his bills.

In 1954, the code was amended again to prevent nonprofit organizations from supporting political candidates. There is no evidence that Johnson or other members of Congress intended for this amendment to apply to clergy and churches. Indeed, even as Johnson was amending the tax code to silence political opponents, he and his campaign were actively working with Protestant clergy in Texas to secure his reelection against a Roman Catholic challenger.

These restrictions through the tax code are less objectionable for educational and other nonprofits that could reorganize themselves as political advocacy organizations if they so desired (although they would sacrifice certain tax benefits if they did). But they are highly problematic when it comes to clergy and houses of worship.

Religious liberty is special and must be protected

The proper scope of religious liberty is hotly debated, but surely it must protect the ability of clergy to instruct their congregants as they see fit. In the absence of a compelling interest, such as preventing physical harm, governments have no right to control what goes on inside of churches and other houses of worship.

Religious liberty is specially protected in America. Some academics and activists argue that this should not be the case, but one need look no further than the First Amendment to recognize that America’s Founders thought otherwise.

Most clergy do not want to preach about politics or endorse candidates, and most worshipers support this view. So do I. But religious liberty shouldn’t just protect what I, or others, think is appropriate. Clergy should be free to preach according to the dictates of their consciences. If they act imprudently, members of their congregations and/or denominational leaders should correct them, not the IRS.

Throughout American history clergy have actively engaged in politics. Readers will undoubtedly support some of their causes, and oppose others. But freedom of religion must be protected regardless of whether we agree with particular actions or views. It is time to repeal the Johnson Amendment, at least as it applies to clergy and houses of worship. Priests, imams, rabbis, and other religious leaders should not have to fear the wrath of the IRS because they say something of which the government does not approve.