In a court decision religious freedom advocates say is a blow to the free speech rights of churches and ministries, a federal judge dismissed a consent decree on Tuesday between the Department of Justice (DOJ) and religious groups to overturn the 70-year-old Johnson Amendment, which bars churches and other nonprofit organizations from endorsing political candidates.

Texas U.S. District Judge J. Campbell Barker, a Trump appointee, dismissed a lawsuit brought by the National Religious Broadcasters group (NRB) and two Texas churches that challenged the Johnson Amendment as an unconstitutional infringement on the freedom of religion and free speech rights of churches to endorse political candidates. Barker rejected the lawsuit on a technicality, ruling that litigation had not been filed in the proper venue because the tax issues involved in the case had not resulted in an enforcement action.

The Johnson Amendment was first introduced in 1954 by then-Senator Lyndon B. Johnson of Texas. It established provisions in the U.S. tax code prohibiting 501(c)(3) nonprofit organizations, including churches, universities, and charitable organizations, from endorsing or opposing political candidates. Although the Internal Revenue Service (IRS) has rarely fully enforced the measure against churches, religious freedom advocates have pointed out that the provision has served as a de facto muzzle on pastors from discussing political issues from the pulpit for fear of being targeted by the government. Several prominent pastors, such as Franklin Graham and Robert Jeffress of First Baptist Dallas, have also described how their churches were questioned by the IRS during the Obama and Biden administrations for engaging in political activities.

In July of last year, the IRS announced that it had made a court filing in the NRB lawsuit that would exempt churches from the Johnson Amendment’s ban on political activity, fulfilling a promise President Trump made during his first term to combat the measure on behalf of churches. But Barker’s Tuesday ruling set the effort back.

“Judge J. Campbell Barker has, regrettably, sidestepped an opportunity, on the 250th anniversary of our nation, to correct a wrong that strikes at the very heart of American freedom,” Family Research Council President Tony Perkins stated in response to the ruling.

Michael Farris, NRB’s general counsel, further pointed out that “[n]one of these plaintiffs have violated the Johnson Amendment, nor have they been subject to IRS sanctions. Instead, they engage in self-censorship because of the Johnson Amendment’s impact on their First Amendment freedoms.” In objection to Barker’s dismissal of the case because of the lack of taxation suffered by the plaintiffs, Farris noted his clients “have no other forum to challenge the free speech restrictions imposed by the Johnson Amendment’s limitation on the right of nonprofits to speak about candidates, unless they first violate the law and then become subject to IRS enforcement action. No person should be forced to place themselves in legal jeopardy to protect their constitutional rights. And the Supreme Court has backed this conclusion on numerous occasions.”

During an appearance on “Washington Watch with Tony Perkins” Wednesday, Farris delved further into the rationale behind Judge Barker’s decision.

“[T]he judge ruled upon [the Anti-Injunction Act], which is a long-standing law that says you can’t sue about your taxes, you have to pay your taxes first and then sue to get them back. Well, that’s nice if we’re talking about ordinary tax liability, but here we’re talking about freedom of speech,” he explained. “… [T]he Supreme Court and other appellate courts have endorsed multiple times [the principle that] you don’t have to violate the law first to be able to challenge the constitutionality of laws.”

Farris further pointed out that there appears to be a double standard in how the IRS has enforced the Johnson Amendment in recent years.

“[W]e put into the complaint several dozen examples of national Democrats [like] Kamala Harris, Barack Obama, Hillary Clinton, and so on, standing in churches, being endorsed by the pastor, making a political speech, asking for votes, and nothing was ever done,” he underscored. “… I mean, the Democrats got one rule, the Republicans got another. … [At] my own church, [Pastor] Gary Hamrick … got sanctioned by the IRS when [he] preached an election sermon that said, ‘Here’s what the Republican platform says, here’s what the Democrat platform [says]’ and comparing it on moral issues.”

Farris went on to state that NRB will appeal the case to the Fifth Circuit Court of Appeals, which could lead to a more advantageous outcome for the free speech of churches than the original consent decree that NRB sought.

“[W]hen you have a consent decree, you are 100% assured of a victory, but a consent decree in a district court isn’t as valuable as an end-of-the-line victory in the Court of Appeals, or especially the Supreme Court of the United States,” he noted. “… So obviously there’s no guarantee we’re going to win, although we think our chances are good. If it does turn around and we do win in the end, then that’s great news, and we will be better off for it in the long run.”