Published June 4, 2026

Court update: Ten Commandments cases, Johnson Amendment dismissal, and SCOTUS actions

 

HOLLY: We don’t think these are relevant concerns under the law, but even if they were, Congress has to change the law that’s been place since the ’50s.

AMANDA: Yeah. I think the judge is just repeating the arguments that they made to him, and he’s like, Wrong forum, guys; take your arguments to Congress.

 

Segment 1: A new decision undermining the Voting Rights Act (starting at 00:35)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler.

HOLLY: And I’m Holly Hollman. We’re glad to be back for this second episode after Amanda’s sabbatical earlier this year and wanted to use today’s episode to catch up on some really important court decisions, and not just at the Supreme Court, but updates on cases that we’ve been watching and have mentioned on this show before.

Specifically, we’re going to take a look at the ups and downs in the litigation over Ten Commandments displays in public schools, including the 5th Circuit’s recent decisions — yes, more than one — on mandates from Louisiana and Texas.

We’ve had several developments since we were together back in December, Amanda, and as our listeners may recall, things were going really well in these challenges. These are brought by parents of public school students, parents from various faith traditions, but there has been a recent and disappointing development out of the full 5th Circuit that has led to speculation that this conflict is going to end up at the Supreme Court. So we’ll talk about that.

AMANDA: Yes. We were — when we last talked about it, we were batting a thousand. We were winning all of those cases. Not so anymore, so we’re going to talk about that.

We also want to go over a few other court-related things and developments that have happened since we talked on the podcast last, including the dismissal of a case involving a challenge to the Johnson Amendment.

And as we approach the end of the Supreme Court’s October term 2025, it is good to take stock of the Supreme Court and specifically as we do on this podcast, its impact on faith freedom.

HOLLY: That’s right. The Court stays in the news these days, it seems, and since January — since you were out — there’s been some headline cases. I’m thinking particularly, of course, of Trump v. Barbara, the birthright citizenship case that was heard on April 1, April Fool’s Day, which has not yet been decided but relates to this major shift that we’ve seen in this administration’s approach to immigration, really challenging a fundamental aspect of our constitutional order. So that’s, of course, noteworthy.

And the Court also heard another case challenging restrictions on the asylum process.

AMANDA: Yeah. The Supreme Court’s docket has remained full as this administration continues to really push the constitutional barriers and in some cases run roughshod over them, so the Court will be determining where the line — the constitutional line — is, and we’re eagerly awaiting some of those cases.

We also know that there are a number of cases related to immigration that are still percolating in the lower courts, in district courts and in appellate courts, but haven’t made it all the way to the U.S. Supreme Court. There are a number of organizations and litigators who are dedicated to immigration law and the constitutional limits there, and we’re grateful for all of the advocacy that’s happening around the country.

And for us at BJC, one thing we always keep in mind is how immigration enforcement and changes in that enforcement can impact religious freedom. And when the government enforcement prevents people from safely entering their places of worship or participating in civic life, the conditions that make religious freedom possible start to break down.

And so we are watching those cases closely, those cases involving sensitive locations, and we’ll have opportunities, I’m sure, to talk more about that on the podcast in the months to come.

HOLLY: Yeah. And then the other recent development that has occupied not only a lot of Supreme Court news but then has the effect on news across the country was the Court’s recent decision in Louisiana v. Callais.

This is the Voting Rights Act, where the Court held that because the Voting Rights Act of 1965 — that kind of landmark piece of civil rights legislation — because it did not require Louisiana to create an additional majority-minority district, no compelling interest would justify the state’s use of race in creating a new district, SB 8.

And so that map that they had presented is an unconstitutional racial gerrymand. So this is the Court throwing out a map that was created in response to an earlier case, but the Court’s decision was quite impactful.

It’s a 6 to 3 opinion written by Samuel Alito. Justice Thomas wrote a concurring opinion. Justice Kagan wrote a very long and impassioned dissenting opinion, just showing the importance, again, of this Court’s change in interpretation of this very important civil rights legislation.

AMANDA: Yeah. And I think this is just the latest in a number of cases coming down from this Court, really scaling back and curtailing the impact of the Voting Rights Act, this time Section 2. While they didn’t full-on invalidate Section 2, the way that their opinion reads, it really reads out any kind of teeth or enforcement out of it.

And we’ve seen that have an immediate impact — an immediate political impact — as we’ve seen a number of states join the handful of states that had already engaged in mid-decade redistricting efforts, now really making full-on power plays to eliminate minority opportunity districts in favor of maximizing the seats that would be drawn to elect the party that has control of whatever state legislature is redrawing the lines.

HOLLY: Both of us live in states where there’s been a lot of scrambling and reacting to the aggressive move of partisan gerrymandering that began earlier in Texas. And, yes. As you said, Amanda, this decision just means that we’re going to see a lot more of that.

AMANDA: Yeah. I mean, I live in Texas, which unfortunately got this ball rolling with mid-decade redistricting last year, 2025, during the Texas legislative session and then spilling over into special sessions because the Democrats in that body put up a lot of resistance and fled the state, used everything in their political toolbox to prevent it from happening.

But, you know, I’ve already heard — remember that Texas redistricted with Section 2 in place, and so I’ve already heard that Texas might come back next year when they’re back in session and draw even more Republican districts, assuming the Republicans retain control of the legislative body in Texas, in order to further maximize their voting power.

And so, you know, I think — thinking through the impact — I think we’re only beginning to see the impact of this decision with the few states that have done it, but one thing that’s been notable is that this will have an impact on the number of people of color, particularly Black representatives, who are serving not just in Congress but in legislative seats around the country, because keep in mind, the drawing of these districts — yes, we’re hearing about it mostly as it impact congressional redistricting, but you can also redraw state legislative seats or even municipal seats.

You know, any kind of time when you’re having lines drawn to maximize political power, without that check, without that check of Section 2 that required there to be an opportunity for racial minorities to elect a candidate of their choosing, without that in place, there’s really very little bar to naked power grabs for political gerrymandering.

HOLLY: It’s going to call on all of us to be much more active in defending the kind of country and states and cities that we want to live in.

AMANDA: That’s right. And I think the importance of nonpartisan efforts to increase voter registration, increase turnout in every district around the country, and to increase nonpartisan voter education, because when people are constantly redrawing these lines, when the politicians and the elected officials are choosing their voters instead of the other way around, there’s always going to be confusion about even like, who am I voting for; I don’t know these candidates; what district am I in.

And so I think that it falls on everyone to really fulfill what I think is a patriotic duty, not just to vote but to help people in our communities vote as well.

 

Segment 2: Supreme Court updates: Landor wait, Chiles v. Salazar decision, and cert petitions (starting at 09:26)

HOLLY: Getting back to some cases that we’ve been directly involved in, we should start with the update again from the Supreme Court. We’re still waiting on a decision in Landor v. Louisiana Department of Corrections. That’s the one significant case involving legal protections for religious freedom that the Court heard this term.

It’s a case that we joined an amicus brief to support the prisoner’s religious liberty claim, and we’ve talked about this on the podcast before, so there are earlier episodes you can get to from our website.

But just a quick reminder, this is a claim where Mr. Landor sued under the Religious Land Use and Institutionalized Persons Act, a very important act of Congress that protects religious freedom for people who are in government custody. And the issue is whether a prisoner’s right to obtain appropriate relief against a government, which is the language of the statute, includes potential money damages against the offending government officials.

And as we discussed in the earlier episodes, you know, it’s a really heartbreaking, terrible case really, an explicit example of why you need strong religious liberty protections in prisons. I think that’s something that really matters to everyone, and yet we know that despite that, that doesn’t mean that he’s going to win, because the case will be decided on these kind of technical grounds, what the statute means.

And Mr. Landor’s attorneys and supported by many amicus efforts put forward a really strong argument. You know, it’s going to be tough, and we kind of know that. We’re waiting for that. There’s been a little bit of speculation, why’s it taking so long.

AMANDA: I don’t know. It seems like it’s a hard case for the justices at this point. And I think that’s a good sign maybe, you know, that it’s not something —

HOLLY: Yeah.

AMANDA: — because, you know — and we’ll link here if people want a little refresher to how we discussed the oral arguments on episode 5 of this season. Those oral arguments were heard all the way back on November 10. And we could tell then that this wasn’t a clear, easy case one way or the other.

In fact, this is the only case heard by the Court in either October or November of this term that has not yet been decided, and in fact, several cases heard after this case have already been decided. So when we finally get this decision from the Court, which should be sometime in the month or June or even early July, we’ll break down that decision here on the podcast.

HOLLY: Yeah. I think that’s right. I agree with you. It might be slightly good news, either that it’s — and I think that’s because a lot of the reporting did seem to suggest that, based on people listening to oral arguments, they did not think it was going well for Mr. Landor. So, anyway, at least it’s not an easy case against him. So we will see what the Court — what the Court does with that.

Recently the Court, as they continue to issue decisions — not the one we’re waiting for — but, no, as they’ve gone through their docket, we want to at least mention one case, I think, that we talked about briefly on the podcast before, and that was the case of Chiles v. Salazar.

It was decided in late March. That was the case that was challenging a Colorado law that banned so-called conversion therapy. It has to do with, you know, some harmful practices to try to change people’s sexual orientation.

And we knew it had issues of free speech that would be difficult for this Court. It wasn’t a slam dunk for Colorado and what its intent clearly in this law, which the intent is clearly to protect against practices that are extremely harmful to people and not helpful to people seeking treatment.

But, anyway, the Court decided Chiles v. Salazar, ruling 8-1 against this Colorado law that banned licensed therapists from providing conversion therapy to minors. And, I was very interested in it, too, because of the harshness that we’ve seen against LGBTQ community and the importance of this issue.

So I tuned in to listen to some experts responding to this, and while they were clearly disappointed, I think that they knew that there was a chance with this Court that they would have to go back to the legislative drawing board to really get it right.

And they wanted to be really clear — and I agree — that the decision does not say that the conversion therapy is accepted, it’s okay, you can do whatever you want; but it really was a decision that was restricted to a specific context. And they’ll go back and make sure that they can protect against that harm.

AMANDA: Yeah. And I think that the context on all these cases is so important. Right? But this is talk therapy. This is licensed therapists. And much more what we think of when we think of peer speech, as far as a Free Speech claim, than maybe some of these other speech — I’m putting air quotes – “speech” cases that come up, like websites or cakes, some of these other contexts that we’ve seen the Court be much more skeptical and much more divided on.

This ended up being an 8-1 ruling against the Colorado law, and so I do think that there’s some nuance there and, certainly an issue that we’ll continue to follow as some of the legislative attempts change for the future.

HOLLY: Yeah. So looking ahead, the Court continues to meet in conference and fill out its docket for the next term. And we have seen a recent cert grant that we definitely will be following very closely that deals with religious freedom. The Court has recently decided to hear a case for next term, granting cert in a case called St. Mary Catholic Parish v. Roy.

Again, as you mentioned cakes and websites, our serious listeners might remember that those cases come out of the state of Colorado, as does this case. So it’s a couple of familiar patterns, one that Colorado’s doing some interesting things and they’re getting challenged, really fighting hard for important religious freedom rights. But there’s a lot of discussion going on there.

So I’d also say that this St. Mary Catholic Parish is sort of in a familiar pattern of the Court being called on to evaluate the constitutional validity of state programs that attach requirements to them. Of course, when the state passes a program, there’s requirements go along with it.

And this time the context is a state — what’s known as a universal preschool program, which sounds fantastic, because we know that research shows that education started earlier has better success. It sounds like an innovative approach to ensuring that early childhood education is widely available.

The program involves schools, I think already existing public schools, and community-based preschool providers, and importantly the program conditions participation on compliance with an equal opportunity policy. That’s kind of a normal condition — right? — that requires eligible children to be permitted to be enrolled in the program and receive services, regardless of certain characteristics.

We know there’s race and religious affiliation and income level, disability, but also including sexual orientation, gender identity. Okay. That’s probably what got attention here. The challenge comes from some religious providers here, a particular Catholic parish and the Archdiocese of Denver.

And they claim that they were wrongly excluded from the program. Specifically in the cert petitions that I read looking at this — not knowing if the Court would grant it but knowing that it was a possibility — they say that the Colorado Catholic preschools, because of that condition, are excluded from the program based on sex and gender, I guess thinking about traditional Catholic teachings in that area.

So we’ll see what happens, but at this stage, the Court’s decided to review something from the 10th Circuit. The 10th Circuit had upheld the program with its requirements, and the Court is going to look at a couple of questions.

The first question relates to when a law is what we call “generally applicable.” That means just kind of applies pretty clearly and equally across the board, kind of what it regulates and everybody’s treated pretty much the same. So that’s kind of one issue, because if it’s not that, you get a higher standard of review. It’s a little bit harder for the state.

And then secondly, the question that they decided to look at is what effect the Court’s recent case about a state that engages private entities, like these private schools to do this public education service, in that case, Carson v. Makin. I think that was 2020 even or it was 2022 out of Maine.

But to what extent does that case that said if a state uses private actors for their education, they have to use private religious ones, too, or they can’t be excluded. So the Court’s going to look at that case again and its impact on this situation. Does the rule in that case only require a higher standard of review when the government explicitly excludes religious people and institutions?

So that’s kind of a lot. As you can see, in just explaining that, there’s a lot to it, but we know that it’s important because there has been this shift in jurisprudence about allowing government money to fund religious institutions and sometimes religious education.

AMANDA: Yeah. And lurking kind of in the background of this case, I guess, is also — we’ve talked about this, and I’m sure we’ll talk about it more in depth again in the future. But there’s this really landmark case in the area of Free Exercise called Employment Division v. Smith from 1990 that really changed the standard of review for Free Exercise cases and made that first question that you asked — Is this law generally applicable? — like really important part of the inquiry.

And so the people who brought this case — now for 35 years, people have been, you know, are there ways that this Court or courts will overturn that case? And so, again, they asked whether Employment Division v. Smith should be overruled, as one of the questions they wanted the Court to take up.

But interestingly, the Court did not grant cert on that question, so it seems, at least, at this stage, they are still not ready to overturn that case, which, again, was written by Justice Scalia — a real, you know, huge figure in conservative circles of the Supreme Court. They’re still not quite ready to go that far, it seems.

HOLLY: And there’s so many legal and case law and academic kinds of exercises in trying to figure that out, what should happen, what could happen, why not. But one thing that we do know for sure is that Smith has not been as limiting as we first thought. There have been ways — the courts have found ways to get to a higher standard of review for impacts on religious freedom.

AMANDA: And we’ve seen this Court do just that in a number of cases that it’s heard. So, yeah. As you note, we’re reading those papers, and we’ll certainly be tracking that case closely, and we’ll be talking about it on next season of Respecting Religion when the Court takes it up next term.

 

Segment 3: Decisions — plural! — in some Ten Commandments cases (starting at 21:23)

AMANDA: So that’s one case we know in the religious liberty field that the Court’s going to take, and there’s a lot of speculation, Holly, that the Court might take another important case in religious liberty and one that we have already been directly involved with at the circuit court level.

HOLLY: Yeah. I mentioned at the top that there’s a lot of cases in the Ten Commandments disputes, and while nothing’s been decided yet, there’s more attention thinking that those disputes might make it to the High Court.

Specifically we’ve had action in a number of courts, challenging these legislative requirements to post the Ten Commandments in public schools, specifically in the states of Louisiana, Texas, and Arkansas. This kind of legislation — we say and everyone who reads case law could say — it’s unconstitutional under the Court’s prior precedents, specifically the case of Stone v. Graham, a 1980 case that struck a very similar piece of legislation in Kentucky.

Okay. What’s changed?

Well, we know and listeners of the podcast know that as the Court has really engaged in some religion cases, that there’ve been changes in the different tests. We just were mentioning in the Free Exercise realm, but there have been significant changes in the No Establishment realm, too.

And that has opened the door for these very aggressive state legislatures to say, hey, let’s take a shot; maybe with a change in standard, there’s a change in the rule. And so, you know, they’ve passed these requirements to put the Ten Commandments up.

So, Amanda, back before you went on sabbatical, starting the beginning of the year, the chronology was just like, okay, here are the states that have done this and here are the challenges by these parents — several different litigating groups, civil liberties, religious freedom groups — that have brought these actions on behalf of parents.

And we first got involved in Louisiana, which was the first case, a case called Roake v. Brumley, and we came in at the — well, we tried to fight it when it was in the legislature, at least tried to get it stopped, and sometimes these things happen quickly. But we filed in the 5th Circuit, and the court had held, at the district court and the circuit court level, that it was unconstitutional. Right?

And, similarly, quick challenges in Arkansas, the case called Stinson, unconstitutional. And these are preliminary injunctions. Actually they’re the court quickly saying, of course this is unconstitutional, Stone v. Graham.

And then in Texas, there’s a number of cases. It’s complex, because as you would think about it, the state passes these laws, but then schools are governed by these different districts, so you have levels of law here in governing what schools do, and that’s really where rules about schools should happen — right? — at the state level. There’s different sets of cases based on kind of different districts. Right?

But, anyway, unconstitutional in Louisiana.

Unconstitutional in Arkansas.

Unconstitutional in Texas, particularly in a case that’s called Nathan v. Alamo.

But then you got — the 5th Circuit was interested in them and then started hearing them en banc, and we had a little pullback.

So they decided when the full circuit got involved in the Roake case, Louisiana case, they said, You know what, this is not ripe; we don’t need to go this far, so let’s dissolve the preliminary injunction. Okay. And —

AMANDA: And why wasn’t it like ripe, if you can describe that a little bit.

HOLLY: Yeah. Ripeness, like — there are these different doctrines of ripeness and standing, to say, is this case ready for this court to look at it. And the 5th Circuit decided that Louisiana wasn’t ripe for decision, even though the legislature said it’s very clearly what schools have to post in the schools.

But there’s a little bit of room for the state to do things differently. They can add a context statement and present the Ten Commandments in a way that has additional material. So very clear — and I think the ripeness argument should have failed, because there’s enough in the legislation that says exactly what needs to happen, but there’s some room for teachers or schools maybe to add a little bit, maybe make the full meaning a little bit murky.

Now, it wouldn’t change what BJC says, because we think that the whole idea of a government deciding what is the proper scripture to put on every wall is out of bounds. But that was enough for the 5th Circuit to say, okay, that case is not ripe.

Meanwhile, they reviewed a case out of Texas, one of the cases out of Texas, where the legislation was slightly different and made a bad decision on the merits, so that’s what we’ll talk about today. That’s what’s disappointing and what might lead to this case moving up in the courts. And that’s because Texas says, Here’s what to put up, just this; this is the size; this is how you do it; this is the version; that’s it.

So it’s even harder — again, this should be hard for Louisiana, too, but it’s even harder to say that’s not ripe, because nothing else has to be decided.

AMANDA: And just a little context about the 5th Circuit. So federal courts are divided into these different courts of appeals. The 5th Circuit covers three states: Texas, Louisiana, and Mississippi. And so any cases decided by federal district courts in any of those cases go up to what’s called the 5th Circuit.

The 5th Circuit is one of the most conservative circuit courts in the country, and in fact, has gotten more and more conservative in recent years, so much so that the Supreme Court — the conservative Supreme Court — has been overturning the conservative 5th Circuit more, because the conservative 5th Circuit has gone so far in some of their decisions.

And so it was gratifying when the Roake case went to a three-judge panel of the 5th Circuit, that that three-judge panel said, This Louisiana law is unconstitutional. But then the parties appealed it, as you said, to the en banc, to the entire Fifth Circuit, to see if they would get a better resolution.

And so that’s how this case out of Texas, Rabbi Nathan v. Alamo Heights ISD, made it, again, to a full hearing of the 5th Circuit, and this time this court very narrowly, by a count of 9 to 8, ruled for the first time that one of these Ten Commandments posting statutes does not violate the Constitution and really tees up this issue for the U.S. Supreme Court to weigh in.

HOLLY: Yeah. So we’ll just hit some of the highlights and lowlights of this decision, kind of what’s on our mind and what we’re going to continue to look at, as well as obviously those who’ve been directly involved in this litigation and who, like us, are very concerned about this move for the government to play this role and for courts to disregard precedent, kind of go beyond even what we think the court should be doing in these cases as they kind of change the standard of what is a violation of the restriction that Congress shall make no law respecting an establishment of religion.

So we both read the 118 pages, so you don’t have to.

AMANDA: [laughter]

HOLLY: The majority opinion from Judge Duncan is 52 pages, and I would say is pretty skimpy on some of the things that would most be questions to you, like, hey, if they can do this, can they do this. Not a lot of deep analysis in parts of it.

But really what they did is just say, under the Court’s most recent No Establishment jurisprudence, where the Court threw out the Lemon test — and Lemon just refers to an earlier case where the Court came up with a system of deciding No Establishment cases — the Court said, we’re not doing that anymore; we’re going to really look to history and tradition to figure out what’s an establishment, an unconstitutional establishment.

Well, that’s what the Court said, but now the 5th Circuit read that to say, and anything that sounds anything like those tests is not good law, so they just disregard Stone v. Graham, the case I mentioned earlier. The majority says with Lemon extracted, there’s nothing left of Stone v. Graham, which, you know — that’s a bold move. The Supreme Court hasn’t said Stone v. Graham is no good anymore, but the 5th Circuit is like — they’re going all out.

And they say that how they should look at it now, based on what they’ve learned from the Supreme Court, the 5th Circuit says that in place of Lemon, courts now have the question of, does the law at issue resemble a Founding Era religious establishment?

So that’s how they’re interpreting the new history standard, is like, Does this look exactly like what was going on in the Founding Era? And the majority opinion says, no, this is nothing like it. And then they have a very cramped version of what the “history and tradition” standard is.

AMANDA: Yeah. And I think, you know, in that Supreme Court case of Kennedy v. Bremerton where the Court did really disregard Lemon; they didn’t overrule Lemon, but they said that that test was no longer — should no longer be used. What a lot of commentators have said, including us: they really didn’t put a clearly defined test in its place.

They referred to history and tradition, but “history and tradition” is itself not a test. That is just a theory — right? — just a framework, and how that actually gets applied really depends like in context and case by case. And so I think particularly —

HOLLY: Particularly odd, too, Amanda, given that there’s so much history in the First Amendment anyway. Our First Amendment’s so unique that we’re used to all kind of history informing the test.

AMANDA: Right. And there are a lot of cases along the way — I don’t know about Lemon in particular, but a lot of these Establishment Clause cases had already been considering history and tradition in their analysis, so it’s not like this is new. Right?

Anyway, so this — again, this is bold. That’s one word for this en banc decision — right? — that first they can claim that they can just, you know, disregard Supreme Court precedent, and then they go on to really identify what they think is the clear test, even though the Supreme Court hasn’t done it.

And then there’s an argument in the case also, not only does this violate the Establishment Clause, but it violates Free Exercise rights, and they also find no substantial burden on the Free Exercise rights of the plaintiffs here.

HOLLY: Yeah. And listeners might be thinking about that, remembering recent case decided as Free Exercise, that curriculum case that came out of Maryland, the Mahmoud case, which kind of changed some ways the courts could make Free Exercise decisions based on education, what happens in the classroom. So that’s another argument the Court’s grappling with.

And I think what we see in this long decision is kind of a fleshing out different arguments, like if this goes up, here, through this majority opinion, concurrences, and significant dissents, here are some of the issues that this Court’s going to have to deal with, and you’re going to hear a lot more about.

Yes, we were gratified that it was 9 to 8, that it was close, and that a few of the dissents were very strong, really seeing not only the boldness, brashness of rejecting Supreme Court precedent before the Court had dismissed it, but also really getting to the underlying issues and showing how this kind of legislation is problematic from a lot of different angles.

So we were pleased with that, and we’ll be continuing to examine that decision and looking for how we can best continue to support the parents. Our briefing has been focused on what you would think that BJC would focus on, and that is clearly stating that it is not the government’s role to intervene and interfere in religion this way, to use the state mandate to uphold particular religious scripture and say, hey, this is the law of the land; look at it, think about it.

And we’ll see. We’ll continue to work on the standard, whether it’s coercive or out of line or a violation of Free Exercise or a violation of secular purpose or whatever the Court’s going to get to. We will be there to remind the Court and to stand with the parents against this kind of overreach of government.

AMANDA: Yeah. And I think this is really just the beginning. You know, we’ve got these Ten Commandments cases, but there are other cases, particularly a number in public schools that are really, I think, over the line of government establishment, and I think we’ll start to see hopefully the Supreme Court flesh out, with Lemon no longer the test, where are the boundaries.

And we’re particularly pleased with the four dissents in this case from different judges who really showed a lot more, I thought, nuance and understanding and depth of the complexity of how to apply the No Establishment Clause, particularly in the public school context.

And so I look forward to these arguments, having more of a hearing, if and when the Supreme Court takes up this case, which most people think that they will.

 

Segment 4: Johnson Amendment update (starting at 35:46)

AMANDA: Well, one final kind of housecleaning matter, because it is a case that we had talked about and an issue we talked about on the podcast previously, has to do with a provision of the tax law that says that 501(c)(3) nonprofit organizations won’t interfere or participate in elections for candidates for public office, this, you know, relatively noncontroversial provision of the tax law — piece of the tax law — that a majority of Americans support, sometimes goes by the name “Johnson Amendment.”

President Trump, in particular — ever since he first came on the political scene — has made it a goal to get rid of the Johnson Amendment, to have nonprofit organizations get more involved in elections for candidates for public office, including his own.

And one recent tactic trying to challenge the Johnson Amendment was a lawsuit that was brought by religious broadcasters and some churches in — wait for it — Texas, and with the new administration coming in, this administration’s IRS said, You know, we’re not going to fight this lawsuit anymore, and instead we’re going to file a proposed consent judgment, basically saying that the parties agree and we think that the Johnson Amendment should not apply in these particular cases.

We talked about, how inappropriate it was to try to use a lawsuit to change —

HOLLY: Change a law!

AMANDA: — change the law.

HOLLY: An agreement, like, Hey, let’s just agree to a settlement to change the law.

AMANDA: Right. And then there’s a lot of confusion. Does it just apply to these parties? What’s the impact? And so we’ve talked about that previously. Well, this case had been pending in a federal district court in Texas, and we got an opinion and an order from the judge in that case, Judge Barker, at the end of March, on March 31 of this year.

And the court found that it lacked the jurisdiction to enter the proposed consent judgment, specifically because the court, quote, “is barred by the Tax Anti-Injunction Act and the related tax suit bar in the Declaratory Judgment Act.”

Now, that is pretty complicated federal law when it comes to tax, but I think the long and the short of it — and I’ll just read here from the court’s order — is, quote, “Put differently, if the plaintiffs gave up their 501(c)(3) tax-exempt status, none of the harms they allege could occur.”

Right. This is what we’ve always talked about, that these requirements are in exchange for or because one has 501(c)(3) tax status and, therefore, is not only exempt from federal taxation but is also that their donors get a tax deduction for the gifts made to those organizations.

And so because the issue of tax is central to it, the court had barriers on what it could do in terms of a consent judgment. And so I loved this conclusion from the court, because it sounds a lot like what we would have said.

The court concluded that, “Congress is the appropriate body to weigh the relevant policy-laden considerations, such as the harshness of the present law, the consequences of an unjustified revocation of 501(c)(3) status, and the number of organizations in any year threatened with such revocation.”

And so —

HOLLY: And, of course, first, we don’t think these are relevant concerns under the law, but even if they were, Congress has to change the law that’s been in place since the ’50s. You don’t do it this way.

AMANDA: Yeah. I think the judge is just repeating the arguments that they made to him, and he’s like, Wrong forum, guys; take your arguments to Congress! And, of course, we know that that’s exactly what they’ve tried to do in the past. There have been legislative efforts, and they have failed —

HOLLY: People don’t like them.

AMANDA: — because people want the law the way it is.

So that, I think, was a win. I think now we’re waiting to see what this administration might try to do next. I don’t think a congressional act is going to be the way that’s going to get them what they want here. And so we’re wondering whether there might be regulations from the IRS or other things that might attempt to change the law, and we’ll be watching and providing updates if that happens.

HOLLY: Exactly. And we know that that’s a problem in itself, this administration’s view of the Johnson Amendment, and we will continue to stand with nonprofit organizations, particularly houses of worship, to protect their integrity, to follow the tax laws as they are written to provide that sort of independence and integrity, to keep partisan politicking out of that sector.

AMANDA: Exactly.

HOLLY: And with that, we are at the end of this episode of Respecting Religion, so thank you for joining us.

AMANDA: For links related to today’s show and a transcript, visit our website at RespectingReligion.org.

HOLLY: You can learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.

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HOLLY: Join us on Thursdays for conversations Respecting Religion.