The Freedom From Religion Foundation has filed a friend-of-the-court brief before the 5th U.S. Circuit Court of Appeals in a case that threatens an IRS provision prohibiting nonprofit electioneering.
FFRF argues that the lawsuit filed by National Religious Broadcasters and allied entities against the IRS is bogus. The Johnson Amendment forbids nonprofits, including churches, from interfering in political campaigns. The religious groups claim that the Johnson Amendment violates their constitutional rights and that there’s a “threat” of the IRS stripping them of their tax exempt status, even though the government has essentially admitted that the chances of the IRS enforcing it against the plaintiffs are vanishingly small.
The plaintiffs are the National Religious Broadcasters and various churches, and they filed this challenge in 2024 against the Johnson Amendment. This federal law prohibits tax-exempt 501(c) (3) organizations, such as churches, from endorsing or opposing candidates for office. In theory, violating the Johnson Amendment could result in the IRS stripping a nonprofit of its tax exempt status, but in practice the IRS has rarely, if ever, enforced the amendment against churches, and it has never been enforced against any of the plaintiffs in this case. The religious groups sued the federal government and then sought a settlement under what they believe to be a friendly administration in an effort to get a court ruling declaring that the Johnson Amendment is unconstitutional.
“Article III of the Constitution limits federal courts’ power to only adjudicate actual cases and controversies,” the FFRF brief states. “In this pre-enforcement challenge, the parties ask the court to disregard Article III limitations and issue an advisory opinion about the Johnson Amendment’s inapplicability to the actions of the plaintiffs-appellants. Article III prohibits the court from adjudicating this case for three reasons: (1) the plaintiffs lack standing (2) no adversity exists between the parties and (3) the plaintiffs’ claims are not ripe.”
First, FFRF asserts that the plaintiffs lack standing to challenge the Johnson Amendment. To demonstrate standing in a pre-enforcement challenge, the plaintiffs must establish that there is a substantial threat of future enforcement of the law they are challenging. The plaintiffs here have failed to do so. In fact, they have established the opposite: no reasonable threat of enforcement of the Johnson Amendment. Not only is there a long history of nonenforcement of the Johnson Amendment, but Congress has enacted special IRS procedures that protect churches from enforcement. Even more explicitly, this current administration disavowed any intention of enforcing the Johnson Amendment in Executive Order 13798. The plaintiffs themselves state in their brief that “everyone who litigated this case below agreed on the result.”
Second, FFRF points out that Article III requires genuine adversity or a controversy between the parties. Yet, no such adversity exists in this case. Rather, both parties agree that the Johnson Amendment is inapplicable to the plaintiffs — explicitly denying the existence of any controversy requiring adjudication. However, the plaintiffs are asking the court to rule on this bogus, hypothetical case anyway and issue an advisory opinion based on broad claims that the First Amendment protects houses of worships’ “right” to interfere in elections.
Third, the plaintiffs’ claims are not ripe for review. As the plaintiffs’ own brief recognizes, their claims are dependent on a chain of speculative events. The court must not disregard the constitutional limitations of Article III and must dismiss this case for lack of jurisdiction.
The plaintiffs here thus fail to establish the Article III bedrock principles of standing, adversity and ripeness. These failures are demonstrated by decades of nonenforcement, special protective procedures for churches, the executive order, and the parties’ own assertions. Rather than asking the district court to resolve a legitimate adversarial dispute, the plaintiffs seek a favorable advisory opinion based on a hypothetical. FFRF contends that the court must refrain from entertaining suits premised on attenuated and hypothetical events that may never come to pass.
Because no case or controversy exists, FFRF asserts that the 5th Circuit should affirm the lower U.S. District Court of the Eastern District of Texas’ dismissal of the case.
“Religious groups cannot be allowed to manipulate the court system,” says FFRF Legal Director Patrick Elliott. “The courts must apply the same rules to all plaintiffs instead of granting religious groups special treatment. We hope our brief sheds light on this manufactured case.”
FFRF Legal Director Patrick Elliott is the counsel of record for the brief. FFRF would like to thank intern Emma Hanson for help in drafting the brief.
The Freedom From Religion Foundation is the largest national association of freethinkers, representing atheists, agnostics, and others who form their opinions about religion based on reason, rather than faith, tradition, or authority. Founded nationally in 1978 as a 501(c) (3) nonprofit, FFRF has more than 40,000 members, including members in every state and the District of Columbia. FFRF’s interest stems from its concern that parties to this case have sought to usurp the Internal Revenue Code and fundamental Article III principles in order to favor particular religious organizations. Courts must not stray from longstanding jurisdictional principle s to afford leniency to religiously-affiliated litigants while using the same principles to deny access to other civil rights litigants.
