Thoughts about God and THE SEPARATION OF CHURCH AND STATE AND THE JOHNSON AMENDMENT
by Rick Jenkins, Ed.D. (July 2016)
The Separation of Church and State
Many believe that the concept of church and state is an important constitutional provision whereby the church and all forms of religion are forbidden from influencing government. In fact, the concept of church and state is not found in the U.S. Constitution at all. The constitution references churches or religion in only two cases: the First Amendment and Article Six.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." (Source: https://www.law.cornell.edu/constitution/first_amendment)
The First Amendment restricts Congress (or the federal government) from establishing an official religion and prohibits them from allowing people to freely practice their religion.
The Sixth Amendment simply prohibits any form of religious test for people holding federal office. (Source: https://www.loc.gov/exhibits/religion/rel06.html)
So where does the idea of the separation of church and state come from if not from the constitution? It comes from the personal writings of Thomas Jefferson, our third president.
David Barton explains this very well on the Wall Builders website.
"In 1947, in the case Everson v. Board of Education, the Supreme Court declared, "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach." The "separation of church and state" phrase which they invoked, and which has today become so familiar, was taken from an exchange of letters between President Thomas Jefferson and the Baptist Association of Danbury, Connecticut, shortly after Jefferson became President."
"In short, the inclusion of protection for the "free exercise of religion" in the constitution suggested to the Danbury Baptists that the right of religious expression was government-given (thus alienable) rather than God-given (hence inalienable), and that therefore the government might someday attempt to regulate religious expression. This was a possibility to which they strenuously objected-unless, as they had explained, someone's religious practice caused him to "work ill to his neighbor."
"Thomas Jefferson had no intention of allowing the government to limit, restrict, regulate, or interfere with public religious practices. He believed, along with the other Founders, that the First Amendment had been enacted only to prevent the federal establishment of a national denomination - a fact he made clear in a letter to fellow-signer of the Declaration of Independence Benjamin Rush:"
"[T]he clause of the Constitution which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States; and as every sect believes its own form the true one, every one perhaps hoped for his own, but especially the Episcopalians and Congregationalists. The returning good sense of our country threatens abortion to their hopes and they believe that any portion of power confided to me will be exerted in opposition to their schemes. And they believe rightly." Jefferson, Writings, Vol. III, p. 441, to Benjamin Rush on September 23, 1800.
"In summary, the "separation" phrase so frequently invoked today was rarely mentioned by any of the Founders; and even Jefferson's explanation of his phrase is diametrically opposed to the manner in which courts apply it today. "Separation of church and state" currently means almost exactly the opposite of what it originally meant." (Source: http://www.wallbuilders.com/libissuesarticles.asp?id=123)
We see from the above that the concept of the separation of church and state was the brainchild of President Jefferson. And his intention of discussing it was to ensure religious people that the government would completely stay out of religious affairs.
However, this concept became a Supreme Court doctrine in the 20th century.
"Despite its inclusion in the pantheon of democratic virtues, separation of church and state did not become constitutional canon until the mid-twentieth century with incorporation of the Bill of Right to the states through the Fourteenth Amendment. In the modern Court's first Establishment Clause holding, Everson v. Board of Education (1947), Justice Hugo Black wrote:"
"The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another [.] No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion [.] In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State." Everson v. Board of Education, 330 U.S. 1, 15-16 (1947). (Source: http://americanhistory.oxfordre.com/view/10.1093/acrefore/9780199329175.001.0001/acrefore-9780199329175-e-29)
Therefore, this concept was incorporated in case law by the Supreme Court in 1947. The "separation" restrictions include:
- The Federal Government nor the State Governments can set up a church.
- The Federal Government nor the State Governments can pass laws which aid one religion, aid all religions, or prefer one religion over another.
- No taxes of any kind can be used to support any religious activities or institutions to teach or practice religion.
So when you hear about protests where someone is claiming that the concept of separation of church and state is being violated, evaluate such protest in light of what the Supreme Court ruled in 1947.
The Johnson Amendment
In addition, many also claim that churches, pastors, and Christians must stay out of politics. Supposedly, their involvement is illegal. It certainly is not a violation of the Supreme Court's concept of the separation of church and state as shown above. So what are they talking about? The Johnson Amendment of 1954.
It is important to note that the Johnson Amendment was not an amendment to the U.S. Constitution. This amendment applied to the federal tax code only.
"The Johnson Amendment was passed by Congress in 1954 as an amendment to section 501(c)(3) of the federal tax code. The Johnson Amendment states that entities who are exempt from federal income tax cannot:
Participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of - or in opposition to - any candidate for public office." (Source: http://www.dailykos.com/story/2016/7/17/1549065/-The-Johnson-Amendment-what-it-is-and-why-Trump-wants-to-abolish-it)
"Section 501(c)(3) of our nation's tax code gives tax-exempt status to a church as long as it "does not participate in, or intervene in (including the publishing or distributing for statements), any political campaign on behalf of (or in opposition to) any candidate for public office."
"President Johnson proposed the amendment to the tax code that has greatly restricted the free speech of pastors and churches on July 2, 1954. 100 Cong. Rec. 9604 (daily ed. July 2, 1954). The words "in opposition to" were added in 1986. Ass'n of the Bar of the City of N.Y. v. Comm'r, 858 F.2d 876,879 (2d Cir. 1988). It was in this year that then-Senator Johnson was up for re-election to the Senate. Unfortunately, it is not clear why Congress enacted it, as "there was little debate over the amendment or how it would influence churches."
"Sen. Johnson's motivations, however, are much clearer. Around the time this amendment was introduced, Sen. Johnson had faced some political difficulties from certain organizations in his home state. "Senator Lyndon B. Johnson of Texas forced the amendment out of his anger that [two local] Texas non-profit groups had supported his primary opponent." Gary Cass, Gag Order, 58 (2005) (citing Bruce R. Hopkins, The Law of Tax-Exempt Organizations, 327 (6th ed. 1992)).
"There you have it. "The IRS rule that strips tax exemption from churches engaged in electioneering was born of Lyndon Johnson's Texas politics, not the U.S. Constitution . . . ." Larry Witham, Texas politics blamed for '54 IRS rule LBJ wanted to keep Senate seat, WASH. TIMES, Aug. 27, 1998 (discussing a study done by James Davidson, a Purdue University sociologist). More specifically, "'[t]he ban on church electioneering has nothing to do with the First Amendment or Jeffersonian principles of separation of church and state . . . .' 'It was prompted by Johnson's desire to challenge McCarthyism, protect the liberal wing of the Democratic Party in Texas, and win re-election.'" Id." (Source: http://aclj.org/free-speech/how-the-johnson-amendment-threatens-churches-freedoms)
"Our ultimate allegiance and responsibility however, is to the Word of God."
The truth is churches have a tremendous amount of freedom. From the pulpit, actual limitations include: Pastors cannot openly endorse a particular candidate, tell people whom to vote for, or contribute church money to a campaign. A pastor is absolutely free to do so as an individual outside the church. Pastors, churches, and nonprofits can lawfully speak in detail about all biblical issues. They may also quote any Scripture in the Bible, discuss unethical abortion funding and the protection of marriage, and distribute voter guides and information as well as register folks to vote. Churches can invite politicians to come in and speak to their congregations as long as they extend an invitation to both parties." (Source: http://davidfiorazo.com/2015/05/the-johnson-amendment-and-the-agenda-to-silence-christians/)
So the essence of the Johnson Amendment is to prohibit entities with a 501(c)(3) tax exemption from participating in political campaigns in which they favor or oppose candidates. Individual pastors or Christians do not hold tax exempt status per section 501(c)(3) of the tax code. Churches and other non-profit organizations hold such exemptions. Therefore, pastors and Christians can be involved in politics all they desire as individuals - but they cannot do so as official representatives of the church.
However, some consider the Johnson Amendment to be unconstitutional. According to Erick Stanley:
"The Johnson Amendment is a big fat opposum. It was a bill that got inserted into the tax code through back-room deals made by a powerful Senator who wanted to be able to seek reelection at any cost and, in the process, trampling freedom of speech and the free exercise of religion. We have grown up with a generation of chuch-goers that believe it is illegal for their pastor to address candidates and elections in light of Scripture or church doctrine when there is no valid justification for believing that."
"The Johnson Amendment was unconstitutional when it was passed and it is unconstitutional now. It's high time that we shined the light of the Constitution on this particular fat opposum." (Source: http://blogs.christianpost.com/liberty/the-johnson-amendment-is-a-fat-opossum-2881/)
"Was the 1954 Johnson Amendment aimed at Discriminating against Black Civil Rights Leaders?
Yes. Churches were completely free to and did preach about Black Civil Rights from the day that the Constitution was ratified in 1788 until 1954. The Johnson Amendment was added to the tax code in 1954 to threaten Black Civil Rights leaders with loss of tax exempt status for their churches if they used their churches to organize Black Civil Rights demonstrations. The Johnson Amendment is discriminatory and is still in effect and should be removed immediately." (Source: http://sisterofthunder.com/?page_id=111)
We should work to repeal the Johnson Amendment. It has been used to discriminate against black civil rights leaders in the past and today it is being used to discriminate against Christians.
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