Rebecca, Liz, Monica, and Alison discuss the ways in which the separation of church and state surfaces during election season. They’ll break down the Johnson Amendment, the rules and restrictions churches must adhere to in order to be tax-exempt, and then explore the unique complaints they receive involving voting in churches.
FFRF, AHA, and American Atheists (like churches!) are 501(c)(3) organizations and therefore do not endorse or oppose candidates for public office.
The Texas Tribune and Propublica (2022) – “Churches are breaking the law and endorsing in elections, experts say. The IRS looks the other way.”
IRS – The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations
AHA (2019) – “Organizations to Congress: Protect the Johnson Amendment”
Washington Post (2016) – “Florida Mosque Removed as Polling Place after Complaints, Threats”
The Humanist (2018) – “On the Hill: How Arcane Senate Rules Saved the Johnson Amendment (For Now)”
Humanists International (2007) – “U.S. District Court allows voting in churches”
Newsweek (2022) – “Idaho Church Under Fire for Hosting GOP Rally Ahead of Midterms”
Rebecca Markert: Welcome back to We Dissent, the podcast with four secular women attorneys discussing religious liberty and federal and state courts and our work to keep religion and government separate. My name is Rebecca Markert and I am the legal director with the Freedom From Religion Foundation.
Monica Miller: And I'm Monica Miller, the legal director and senior counsel at the American Humanist Association.
Alison Gill: I'm Alison Gill, Vice President for Legal and Policy with American Atheists.
Liz Cavell: And I'm Liz Cavell, associate counsel at FFRF. And it is November, it's election season. So for this month's episode, we thought we would talk about the types of complaints and issues that we hear about at our organizations around election times and during election years. So a couple of the things we're gonna talk about is electioneering, so campaign intervention by churches and other non-profits and the law around that, and also the use of churches as polling places, which actually is something that comes up pretty frequently amongst our members at our organizations.
Rebecca Markert: So this is an area that we don't typically consider a straight up separation of state and church violation, but it is something that FFRF receives complaints about every election season. Every election season we are sure to get complaints from churchgoers actually who tell us that their church, their pastor has endorsed a candidate for an upcoming election and they're appalled by that and they would like us to know that and they would like us to do something about that. And normally at FFRF when we receive a complaint like this, we take a look to make sure that it is a violation of tax law and then we would send a letter asking the IRS to investigate. The other complaint that FFRF receives quite often during election season, as Liz mentioned, is polling places that are in houses of worship. Oftentimes these are huge megachurches Christian churches and we have people who are surprised to find out that they have to vote in a church and don't think that it's appropriate. We've seen churches that have acted as polling places, but then also take the opportunity with these large volumes of people coming through their doors to hand out literature about their worship services and things like that. I recall one election season when I first started at FFRF, there was a church in Pennsylvania that had a huge table outside of the polling site that just had a goody bag for every voter to come and take with them, and it had things about paraphernalia, about their worship services. It had I think , a little New Testament in it. It had bookmarks, it had an invitation to the church's Thanksgiving Day meal and a prayer card and things like that. So, those are the types of things that we see typically during election season, not only are they serving as a polling location, but they're using it as a way to proselytize or to get more people coming into their church when it's not an election day.
Monica Miller: Just to echo what you're saying, AHA receives the exact same kind of mirror complaints and it it's always felt a little bit like our hands have been tied because even back when the law wasn't as muddled or obnoxious, this was still an area where we felt like, as you guys know with your lawsuit, the IRS enforcement was lacking and the dearth of Establishment Clause precedent in favor of this issue was also lacking. So we would get this influx of complaints and say we're continuing to monitor it, and I think we actually built up quite a strong compelling social science case for this, which we'll get into later as to how this is really coercive and how we don't even know about it. Even atheists that go into these places thinking they're impervious, there's still this subconscious effect so we'll get into that later. This is a real concern and we see it year in and year out and around election time and sometimes just for smaller scale elections.
Rebecca Markert: And I will add onto that we get a lot of complaints during these big elections years, so the even numbered years when we have a presidential election, or the midterms, but we are seeing more complaints come in also during these off years or what we like to in Wisconsin call them the spring elections. So they're the local elections. We have been getting a lot more complaints about that as well. I want to start with what Liz referred to as electioneering by churches and explain a little bit about what the law is regarding this issue and just kind of take you through that. The law that prohibits churches and actually really all 501(c)(3) charitable organizations from intervening in campaigns is known as the Johnson Amendment. This amendment was introduced by then Senator Lyndon B. Johnson back in 1954. It is an addition to the tax code that says any organization that's organized as a 501(c)(3) organization, those are organizations like ours that are charitable organizations doing educational work or religious work. So they do include churches and affiliated groups, other types of religious organizations. This amendment bars them from participating in any political campaign on behalf of or against any candidate for a public office. If they do engage in electioneering, then they could risk losing their tax exempt status. What's interesting about the Johnson Amendment is that it was considered uncontroversial at the time that it was introduced and passed. It passed, I think if I recall correctly, without debate.
Liz Cavell: It was a voice vote I think at the time.
Rebecca Markert: So then the other interesting thing about this is that the provision remained even when they did the tax reform act of 1986 during the Reagan administration. And I think that this is very interesting, and I just kind of wanted to point this out because these are two times in American history where we saw a surgence of the religious right, the 1950s when the Johnson Amendment came into being. This was in the context of a time when most Americans were trying to fight against the godlessness of communism, and that's when we were putting "In God We Trust'' on the money and "Under God" into the pledge. Then when we reformed the tax code in the 1980s, this provision remained in effect even though the context of the 1980s was when we had the moral majority and the religious right efforts were really on a resurgence here under the Reagan administration. So I thought that was just an interesting thing to point out, that even when we had these conservative religious movements, this provision which now is hailed by largely by conservatives as something that should not exist and we should repeal.
Monica Miller: That's a really good point because it's a testament to what we keep preaching in each of these segments is that this is the worst of times in terms of religiosity in America and the force, the forces that we're fighting to keep church and state separate are just so overwhelming that legislation like this was non-controversial then that is now being taken by the right and trying to be demolished. It's just a completely yeah, radical time.
Alison Gill: I think it's important to note that the Johnson Amendment only applies to electioneering and the candidates. It does not apply to ballot measures or just get out the vote campaigns that are nonpartisan. So it's important to understand that because sometimes in the opposition we're facing is from churches that might wanna take a stance on an issue. Well, they can take a stance on an issue or they can take a stance on getting the vote out, and there's lots of campaigns in churches for getting the vote out, and that's perfectly appropriate. We're talking about supporting or opposing candidates.
Rebecca Markert: And so what Alison is talking about is lobbying, really. Valid initiatives are considered lobbying initiatives by the irs, and that's perfectly acceptable activity for a church or a 501(c)(3) organization to engage in. What churches and other charitable organizations can't do is they cannot endorse or oppose candidates for public office. They can't make any communication either from the pulpit or in a church newsletter or in some sort of bulletin, which expressly advocates for the election or defeats of any candidate for public office. They can't make expenditures on behalf of a candidate for public office or allow any of their resources to be used indirectly for political purpose, like using the church phones for a phone bank for example. They also cannot ask a candidate for public office to sign a pledge or promise to support a particular issue, and they can't distribute partisan campaign literature. Also, they should not be displaying political campaign signs on church property. This is probably also going to intersect a little bit when these churches then serve also as polling places.
Monica Miller: As the polling, like doubly subliminal messaging.
Rebecca Markert: The IRS has also interpreted this provision in a way that means there are no magic words. In other words, endorse or oppose means more than just you should vote for this person or you should vote against this other person. There are no magic words that need to be said in order to violate this provision. Really what the IRS is looking for is can you reasonably infer who you should vote for or who you should not vote for based on the communication that was issued by the organization. Then it crosses the line, and there are certain issues that are known as wedge issues that have so partisan that the IRS considers the discussion of them, particularly when they're close in time to an election to be a violation of this provision that is illegal campaign intervention. Those issues are the ones that differentiate the candidates. Oftentimes abortion is a very good example of this one.
Liz Cavell: The Johnson Amendment is a statute, it's a part of the tax code, and so it's really specific about what it prevents and what it does not prevent. And the thing that it's zeroing in on is endorsing or opposing candidates for office. So like Rebecca said, that's not just like a black and white analysis. There's no magic word analysis like vote for Rebecca Markert or don't vote for Alison Gill. Don't read anything into those examples, guys.
Alison Gill: Oh, I will.
Liz Cavell: But it could mean, right? What Rebecca's talking about is abortion has become so coded and so associated with partisan positions that if it is October 25th, then the midterms midterms are coming up and you're preaching from the pulpit, you're going to the polls next week and God wants you to vote for against abortion and there's only one candidate on the ballot who opposes abortion and you need to vote you're Christ-like vote. Then you're getting towards candidate endorsement even though you're not saying the names of candidates and you're not saying vote for X candidate or don't vote for why candidate, but clearly you are intervening in a campaign on behalf of a candidate or against a certain candidate. So that's kind of what the analysis looks like and that's where you're looking at more of the whole context of what a (c)(3) or a church is doing, not just the magic words that they're saying.
Rebecca Markert: Well, and even just saying you need to vote pro-life Christians vote pro-life, or whatever it is that seems a little more removed than your example, Liz. But it is the same idea. You know in elections these days who the pro-life and who the pro-choice candidates are, and just throwing out those terms the IRS is going to say, No, you are intervening in a campaign. But again, back to Alison's point, lobbying is different. We've often seen people get upset about the Catholic church getting involved in the abortion debate, and a lot of times we at FFRF will receive complaints again from churchgoers. These are people who are going to the pews on Sunday and they're upset to find out that their priest handed them a postcard upon leaving mass saying, "write to your senator and tell them that we disagree with abortion and to vote against all of these bills," and they think they're getting involved in politics. They're not allowed to do that. Well, if you have a history of speaking out against a particular issue and you've continually worked on that issue even in non-election years, then that's going to be viewed by the IRS typically as something that is a permissible lobbying activity. It's going to be different if it is close in time to the election and it is the first time you ever brought it up, that is going to be viewed differently. But again, my example is always the Catholic church because they've done postcards in the pews for years, and that's typically going to be seen as permissible activity.
Liz Cavell: And you said ballot initiatives, Rebecca earlier advocating support for or against ballot initiatives is viewed by the IRS as lobbying and not campaign intervention. So that would be vote for prop eight or whatever or vote against prop eight and you'll see 50 of those signs in front of a church and people often will view that as political activity, but really that is within the permissible activities under the tax code of 501(c)(3)s under a different set of roles that regulate how much lobbying we can do and churches can do, but it's not prohibited by the Johnson Amendment.
Alison Gill: That's a really good point, Liz, is that these rules, we're talking most about churches, but these rules also apply to nonprofits. We're talking about rules that are universal for churches and other types of nonprofits. So just to keep that in mind, we're talking about rules that are and should be universally applied.
Monica Miller: Exactly. Because otherwise it interferes with the marketplace of ideas. How can our organizations, if we're playing by the rules, get the same political message out if our opponents meta physically or their philosophy opponents are able to cheat the system if they're handing out postcards and whatnot in the mail?
Liz Cavell: And you might be a person who's just listening to our podcast and thinking, I don't hear or know a lot about the tax regulations that apply to 501(c)(3)s, but you probably have heard of the Johnson Amendment because it was literally said 800 times by President Donald Trump during his reign, and he was often talking about how he was going to pay back the evangelical community for voting for him by doing away with the Johnson Amendment. And he often said he did do away with the Johnson Amendment, which we can fact check real quick, which because the Johnson Amendment is still in effect and never–
Monica Miller: Pretty sure we could correct that one
Liz Cavell: Yeah, that one got four Pinocchios from the Washington Post. It is not true, but he talked about it a lot. And in recent years, you're just sort of a casual political observer or you're into church state issues. You probably have heard religious political activists complaining and bemoaning the Johnson Amendment as something that is so restrictive of their free speech and their rights of free exercise and all of this stuff. And so part of what I think is important about engaging with this topic is that I think a lot of people would be surprised to learn how very specific and narrow what the Johnson Amendment regulates is, right? There's actually still a wide berth of speech and even political adjacent activity that's not related to campaigns for public office that nonprofits and churches can do. We can do issue advocacy and we can engage in lobbying and we can lobby for ballot initiatives and we can even talk about things that are in the political realm. We just cannot endorse or oppose candidates for office or do so encoded terms or backhanded ways. And that is all that's being regulated. On the same terms for churches by the Johnson Amendment, despite what you might hear or the hysterical way in which this has been talked about politically over the past few years,
Rebecca Markert: The reason for the Johnson Amendment, the reason we have the Johnson Amendment to begin with is because when you are a 501(c)(3) organization, you are a tax exempt organization. But also (c)(3) organizations get contributions that are tax deductible on the donor's part, and the Johnson Amendment exists to make sure that those donations don't act as a political contribution. They are tax deductible and they're not supposed to be going for political purposes. They are supposed to be going for charitable purposes.
Liz Cavell: Right, you don't want campaign donations to be tax deductible, and that's a value judgment by our society. We don't want people to be able to make their dollar go further in a backhanded way by giving to charitable organizations, including churches tax free. So it's a write off for you as the donor and you get to support a candidate's political campaign. We don't want that to be what we spend our tax dollars on because again, taxpayers support charitable organizations and churches
Alison Gill: Even more so. Churches, unlike other non-profits, are sort of a black box. They do not have to report to the IRS. We've all done work on this issue. They don't have to do the same types of filings as other types of non-profits. And they can hide things. So if the Johnson Amendment didn't exist and a person can donate to a church, get tax, make it tax deductible, and the same time a church does not keep records to make that available and it's totally hidden, and you have this whole new source of dark money that could flow through churches to their selected candidates in a way that would totally invalidate most of campaign finance law. So that's one of the reasons this is really critical is because churches are just the perfect avenue to filter and hide money and stick it into politics.
Rebecca Markert: I wanna talk about an initiative that is known as Pulpit Freedom Sunday. This is an event that takes place in October and encourages pastors to violate Section 501(c)(3) by using their Sunday sermon to openly endorse or oppose specific candidates for elected office. Again, I'm going back to when I first started at FFRF. This was a major thing that happened every October before a big election season, like the presidential elections or the midterms. This is an initiative that was started by the Alliance Defending Freedom, and they were eventually called out by a lot of people, lawyers mostly saying, what you're doing is actually your lawyers at Alliance Defending Freedom. You're actually going out and encouraging people to break the law, and that is an ethical violation. And so the organizers behind Pulpit Freedom Sunday have kind of taken a step back and more so criticized the Johnson Amendment overall. But this idea that there is a Sunday in October where pastors should go and openly violate the Johnson Amendment so that they can get a case in court and make its way up to the Supreme Court so that they can strike down the Johnson Amendment. That's the point of Pulpit Freedom Sunday, they're openly asking the IRS to come after them and to penalize them for speaking for or against a particular candidate.
Alison Gill: I think it's important to understand that Trump said that he got rid of the Johnson Amendment, but what they actually did was just not enforce it. And that's not actually unique because the Johnson Amendment is very, very, very rarely enforced. It's been enforced so infrequently and almost never against churches. I think the Washington Post reports that since 2008, only one of more than 2000 clergy challenging the Johnson Amendment vocally publicly have been audited and none of them punished. So there's been very, very little actual enforcement of it. And so I'm just gonna, I support the Johnson Amendment. I talked about why it's so important just a second ago, but I'm gonna do a devil's advocate sort of thing here and just say we have a situation of where we have at least a part of one side, most of these evangelical groups, evangelical churches that are blatantly ignoring it and not, it's not getting enforced against them. Whereas I've worked for a number of non-profits on progressive issues. They've been scrupulously adherent to the Johnson Amendment. So basically they do not engage in any type of electioneering. They stay far away from it just so there's no implication that they could be doing that. And partially they're worried about if a Republican president comes in and says, "Okay, well you violate this, I'm gonna enforce it against you" and be basically a bully about it and try to get your 501(c)(3) status strip. So there's genuine concern about that. But does that mean we're in a situation here and this now because one side feels unconstrained and they're free to participate in politics and the other side does not? Is that the situation we're in? I'd love to hear your thoughts.
Liz Cavell: I mean, I think to some extent that has been the situation we're in. So of course, Rebecca, I can't help but think about one of FFRF'S lawsuits, a problem we've been trying to address through litigation and we've made some headway. But again, the problem is more political than is possible to address through the courts. But we sued basically to try and get the IRS to enforce the Johnson Amendment because of how woefully under enforced. We can count on one hand, like Alison said, the number of investigations, and there's probably one famous case of a church losing its tax exempt status.
Monica Miller: I mean, it's taking the ADF to raise their, They have a whole pulpit Sunday thing just to try and get the IRS to enforce it. That's literally how unenforced it is, is they have to be waving their hands and have a whole campaign like "we're breaking the law!"
Alison Gill: And to be fair, if it was enforced and it went to this Supreme Court, somehow I'm not confident it would stand up.
Rebecca Markert: Well, I think part of the reason that we're seeing also little enforcement by the IRS is that the IRS is just so overwhelmed with their work and underfunded. And we also have to remember what's happened in the last 10 years. They did come under a lot of scrutiny for the way they were treating the Tea Party organizations and things like that. At one time in the last 10 years, they did put a moratorium on anything involving these (c)(3) groups because of all of the scrutiny that they were receiving and all the criticisms that they were receiving. So I think we can't discount the fact that they are just a government agency that's also underfunded and can't actually do their job. And then Congress actually made them stop for a while when, like you said, Alison, when there was Republicans who were in charge of the legislature and they wanted to stop this. So we have that backdrop happening as well. But we also need to point out that the Johnson Amendment is actually very popular. There are studies that have talked about how popular it is with the American people. Lifeway Research, which is actually the Southern Baptist Conventions research arm published a survey back in 2016 that said four outta five Americans oppose politicking from the pulpit, fully 79% opposed pastors endorsing candidates during a church service. And in fact, more than eight and 10 believe it's inappropriate for churches to use their resources for political campaigns. So the American people, the majority of the American people really agree with this. That also goes to the fact that when we're hearing about these issues, we're hearing about them from people who are actually going to church. Nobody wants to go to church and hear the pastor say, "This is who you should vote for." I think just generally as Americans, we don't like people coming to our doors or to our churches or wherever we are and saying, "You should vote for this person." But I agree with you. I don't think that if this case now were to come before the Supreme Court that the Johnson Amendment and the people who support the the Johnson Amendment would prevail, I think this Supreme Court would be really ready to strike it down.
Alison Gill: I think it's important to know there's only a small fraction of churches like the ADF affiliated very right wing churches that are supporting striking down Johnson Amendment, like the vast majority of religious entities and churches, not just the attendees, but the churches themselves support the Johnson Amendment because otherwise you'd end up in a situation where they are forced into politics, be
Monica Miller: Well, exactly.
Alison Gill: They would have to participate in it because lawmakers would go to them and say, Hey, you're in my district. I want you to endorse me. Then they have this whole situation out in front of them where they have to make decisions about who to endorse. It would make religion even more of a central issue when it comes to elections, and it would just create a lot of habit that they don't wanna deal with.
Monica Miller: Well, it also just presents a quintessential Establishment Clause violation in the sense that it's core entanglement when you've got religious groups competing for government resources, for literally government electives to be their representatives. And then you have those government electives literally pandering to those churches to endorse their message. That's exactly the thing that we sought to avoid in establishing our great nation that has church state separation at the core is this idea that we don't want religions fighting with each other, and we especially don't want them fighting with each other over government resources. And we really don't want the government pandering to those religious groups and creating favoritism among those groups because that in turn generates religious strife. And then we end up in the situation that we had in England before we left there. So it goes to the core reason we have our First Amendment, even though we're all here saying that it's not enforced, we really can't even get to this issue through the Establishment Clause. We have to have the Johnson Amendment. It's basically the only thread that is, that at least is metaphorically, even if it's not being enforced, at least it's a principle that we're trying to not violate because you could get that IRS audit. It's not implausible that you're the church that gets it. And frankly, if you're a smaller church, you might be more likely to get that IRS audit.
Rebecca Markert: Well, Alison's point about the fact that there are really a select few evangelical churches, mostly that support repeal of the Johnson Amendment, just made me remember my favorite personal anecdote about the Johnson Amendment. And I have one, not just because I'm a nerd, but <laugh>
Monica Miller: Your favorite Johnson Amendment moment
Rebecca Markert: My favorite Johnson Amendment moment. So I grew up in a Catholic family and one of my uncles was a Catholic priest. When I first started working at FFRF, one of my very first assignments was to start writing to the IRS about a lot of these Catholic bishops that wrote to their congregation to parishioners during the 2008 election talking about who they needed to vote for mostly on the issue of abortion. And this was in the news. A lot of people were upset that this bishop was telling us how to vote and things like that. And of course, I wrote a letter to the IRS, we did a press release about it, and it gets picked up in the papers in my home state of Wisconsin. And a few weeks after the election, of course, I go up to Green Bay where I'm from and have Thanksgiving with my family, and I walk in the door and there's my Catholic priest uncle standing there and we're all saying, hello. And he says, "Hey, I saw your name in the paper." And I thought, Oh no, I don't know what to say and I was like, "You did?" And he said, "yes, Attagirl." And it was one of those moments where I thought I am really doing good work.
Monica Miller: I love that story!
Rebecca Markert: My Catholic priest uncle also agreed this is not something that they wanna get involved in. And he also found it to be incredibly inappropriate and not the right time to bring up elections, not during mass on Sundays.
Monica Miller: I think it's exactly right that this is the work that I know that my rant seemed a little bit irrelevant, but it's the reason why religions, it was religions that came here for that freedom. I mean, they're the ones that want their religion to be pure and not government imposed and not gov. There's no free lunch, as Holly Hollman would say, the Joint Baptist Committee. She, it's like, we don't want the government to give us money because then we owe the government something in return and that creates this entanglement. That entanglement is something that our atheist groups really don't necessarily have to have the same concerns with. Like because we don't have church doctrine that can be warped. Like, Oh, I don't know, the Latin Cross one day means Jesus, the next day this US Supreme Court per Alito decides that it actually means Judaism and atheism. And then they're like, No, we don't want that. It is really important to highlight exactly that, Rebecca, that this is so favored by religious people. Catholic priests are patting you on the back and saying they're proud of you because this is an issue that religious people should care about and perhaps even more so than atheist.
Rebecca Markert: And I think they do. They really do. Like Alison was saying, they don't want to be in this position.
Liz Cavell: And I mean that's reflected in the survey numbers that Rebecca mentioned earlier. Most people support the Johnson Amendment and most people have this value sense that politics and what you hear from the pulpit that is just too much entanglement even for just your average person. But I also think it's really important about the Johnson Amendment is that it prohibits so little. It's just this last bull work against the complete mingling of exactly and just perverting of what churches and charitable organizations are. But there is, there's ten ways from Tuesday for politics to permeate every single aspect and institution of our lives. If a charitable organization wants to, they can form a (c)(4) and they can do more political activity than a (c)(3) can do. All of our charitable organizations, including churches, can speak on any political issue of the day that doesn't involve candidate endorsement. And you see the public mixing of Religion and politics so much more than anybody wants to. The Johnson Amendment is really just this final ball work standing in the way of the whole 501(c)(3) institution being meaningless because it will just be completely swallowed up by politics. And I think people have a general sense of that, that religion is already politicized enough and politics is already everywhere enough. I feel like there's so few limits that we want this one last limit.
Rebecca Markert: I don't know if we wanna talk about this recent news story. I saw American Atheists had retweeted the story about the First Baptist church in Idaho hosting the GOP rally.
Liz Cavell: This happened in Coeur d'Alene, Idaho at First Baptist Church where there was a Keep Idaho Red rally held in the actual church. So obviously it was an event promoting all of the conservative candidates on the ticket. So this event was called Keep Idaho Red and specific candidates that are on the ballot were allowed to speak and they were obviously endorsed. All of this took place in this specific church and there was some big backlash and people calling for the First Baptist Church to lose their tax exempt status over this because obviously it violates the Johnson Amendment. Just seeing this on Twitter or in a headline, there's definitely some questions we would have to say, Wait a minute, are we really seeing a Johnson Amendment violation here? And the answer is usually, probably because church flagrantly violate this law very often. But it's important to point out that it would be legal for a church to let its space, the physical church space to be let out or rented out to anybody. And even political groups, even the Republican Party of Idaho or whatever. But that would be only something that was done on a neutral basis and something that wasn't done without the active participation and endorsement of the First Baptist Church, which is what is apparently what happened here in Coeur d'Alene. So I think that is just one of many examples of the type of campaign intervention. And of course we're three weeks out from the midterms, and so this is obviously a campaign intervention on the part of this church, which should threaten their tax exempt status. It's a clear violation of the Johnson Amendment. But this is the kind of thing that we see all the time and that we all hear reports of, especially as we get closer to an election.
Alison Gill: It's not just that we're worried about the courts. The courts would overturn this at the higher levels, maybe possibly strike down the Johnson Amendment. It's also optically this sort of thing the conservative groups have really used it against people that try to hold them to account. If news stories get around, I don't know the government or is going after a church, and then they'd pull out all these sob stories about how they're just trying to preach Christ's love or whatever. And you know what I mean? They would just really focus down and make it look terrible. So optically, it's a challenging thing, even putting aside the law and how we're worried about what the courts might do with it and that that's also an issue. We've seen how the right, in multiple different cases regarding multiple different laws has sort of flipped when churches are acting badly and breaking the law sort of flipped that on its head and used it to fight for the rights of churches. A really good example is there was a local ordinance passed in Houston a few years ago called Hero, the Houston Equal Rights Ordinance. And that was about nondiscrimination for a whole bunch of different categories. And there were several churches that were sort of holding events opposing it. And at one point the Mayor of Houston subpoenaed the churches to get their information about what they were saying. And of course that's a necessary process if you're gonna say, "Okay, well we're gonna hold you to account," you have to subpoena them to get what they actually said. It's the only way to do it. And then all this media became the mayor subpoenaing churches and held a terrible violation of church day separation.
Liz Cavell: Subpoenaing their sermons, remember?
Alison Gill: That's right. That's right. Yeah. So you can see the problem here in multiple different avenues.
Monica Miller: Exactly.
Liz Cavell: Yeah. That somewhat accounts for, I mean there's a huge component, what Rebecca was talking about before, which is the under resourcing of the IRS in terms of enforcement. They are doing so much just in terms of the breadth of what IRS does, just in general, that they just don't have flat out the resources to enforce every single provision. But I also think that it is a political challenge. It is a challenge in terms of how to do it in a way that isn't just so disruptive and subject to political football, how to enforce this in a way that just isn't a total headache and isn't just turned into misinformation that thwarts all the other efforts of the IRS.
Monica Miller: Well, that's a really good question. And maybe it's incumbent on our groups, maybe our lobbying wings to maybe, I don't know else maybe you can speak to what, if there are any sort of measures that are being promote pushed about adding not a citizen supervision, but maybe another enforcement wing, something that we would be promoting. What kind of legislation could correct for this or what kind of regulation could correct for this? Or is there adding a wing for the enforcement of the Johnson Amendment that we've ever kind of proposed as legislation?
Alison Gill: Sure. I would say there's a lot of efforts to preserve the Johnson Amendment under, cuz it's constantly under attack by the right wing. So there's coalitions focused on preserving it. I have not heard as much about reforming it or making it stronger. However, there have been efforts about making it easier to audit churches and to require the same types of filings of churches as other, which is start to get at some of the problems I was talking about earlier. So it doesn't solve the problem with them ignoring the Johnson Amendment, but if there were more transparency and more equivalency in the laws surrounding these issues, it would be less of a problem. So I think that's where, at least I know that our groups have been focusing.
Monica Miller: Right. So the 990 Form I think is one of them maybe. Yeah, that's a good example. I mean the problem you're alluding to is that we are so forced onto the defensive side that we're just trying to keep the Johnson Amendment and have the 990s be enforced. Because one of the first things as an intern that I had researched a decade ago was the under enforcement of nine 90 or the lack, the fact that the churches didn't have to file a 990 form. But groups like the American Humanist Association did.
Rebecca Markert: I also wanted to point out that in the appropriations bills for this next fiscal year, Congress did plan to allocate more than 6 billion to the IRS to strengthen its enforcement efforts.
Liz Cavell: If you watch Tucker Carlson or anything you've heard, it's just this idea that the IRS is creating an army to come just totally violate your religious freedom. Of a piece with this idea that any enforcement of the Johnson Amendment or any equal enforcement of the tax code against conservative religious churches is somehow this huge violation. And they won't tolerate any accountability in that space.
Alison Gill: Which is especially disturbing as you know, there's been so many efforts focused on directing government money to these organizations, to churches, the Paycheck Protection Program and all these other, I mean, was a massive effort on the Trump administration was to just shift as much public money to churches and to religious organizations as possible. And of course they're black boxes. So anyway, it's very frustrating. It always gets to me
Rebecca Markert: Well, it just underscores the themes of our podcast. It seems like all of our episodes have this underlying theme of churches and religious organizations want their cake and to eat it too. And then also what we were talking about earlier, that they take something that is against the law and they're called out for it and then they turn it into look at how they're persecuting us.
Liz Cavell: Well I do just wanna point out as we're sitting here talking about it, cuz I think it's not well known enough, we're kind of thrown around terms like the Form 990 and alluding to the fact that churches are already not accountable or they're like a black box. And what we're talking about is as 501(c)(3) organizations, which all of our organizations are, and that's what churches also are under the tax code. They fall under 501(c)(3). That's why they're tax exempt. They're churches or charitable organizations. But unlike everyone else, as individuals and businesses and secular organizations like ours, they don't have to file any kinds of tax forms whatsoever to establish their status. So the Form 990 is the tax form that nonprofit organizations fill out every year to literally account for how much money they take in donations, how much they spend on programs, how much they have just sitting in the bank, how much they pay their CEOs, things like that that make sure that they are falling in line with what an organization needs to be in order to be considered tax exempt. And churches are exempt from all of that filing. They do not ever have to put a piece of pen to paper. They don't have to hire an auditor. They don't have to submit any tax form to the IRS whatsoever to operate like a charitable organization so that already they're starting out on such a preferential footing when it comes to their tax status. And so that's why people like us have no patience for their bitching and moaning about the tax code being enforced against them because they do literally nothing. And the Form 990 is burdensome. It, it's onerous. Like all of our organizations probably hire an auditor to help us fill out the annual form 990, because even for a smaller or middling sized non-profit, it is a big undertaking to keep up with that level of financial accountability and as we should because we take tax exempt donations and we have the privilege of tax exemption as a non-profit and so do churches, but they don't have any of the accountability that goes with it.
Rebecca Markert: So we should shift now to talk about the other type of complaint that we received during election years, which is Houses of Worship being used as polling places. This is a very common practice where large churches open up their doors on election day to allow people to come in and cast their vote. Oftentimes when we receive these types of complaints, people are surprised to learn that they have to vote in a church. They don't feel comfortable voting in a church. And so what's the state of the law on this? Well, generally when this type of practice has been challenged, courts have upheld the use of churches as polling places. So long as there are reasonable alternatives for those people who are objecting to entering a house of worship to vote, alternatives include things like absentee voting in some places you actually also, I think there's one place in Arkansas where you don't have to go to a designated polling location. You can go anywhere within the city limits to cast your vote. So there are other places that you can go that's not a church in order to vote.
Liz Cavell: That's to say if people have challenged having to go into a house of worship in order to vote, if they've challenged that as an Establishment Clause violation, right, Rebecca?
Rebecca Markert: Right.
Liz Cavell: Courts have not been willing to view that as coercive enough when there is another alternative to voting.
Monica Miller: The American Humanist Association actually brought a case about this in 2011 before we really were full up and running a legal center, but then I think we dismissed it. But in the research of doing this, and it came up again when we challenged actually a public school district's use of a Christian chapel for graduation ceremonies, our opposing counsel actually invoked the cases that upheld polling places for adults. But there really weren't a lot of them. And my opposing counsel I remember painted this picture of all these cases have been upheld using polling places. And I think there was exactly maybe two circuit court opinions. That's enough for our groups to certainly not in this day and age go running into court and challenging this issue. But at the same time, it really hadn't been fully litigated and it certainly didn't reach the US Supreme Court, which I think there would be a period of time where if it had, I think the US Supreme Court could have ostensibly said, maybe those alternatives are enough to not make it coercive, but we still might have an entanglement problem or we might still have a coercion problem based off of this idea of priming the idea that there's this subliminal coercion that happens that really strongly influences the outcome of elections. And that's born out by actual studies and research that have been peer reviewed.
Rebecca Markert: So Monica referenced the two cases that she knew of that upheld churches as polling locations. And we actually found three, so you're not far off, but the first case came out of the state of New York in the 1960s, Burman versus Board of Elections. And in that case the Second Circuit Court of Appeals found that the ability of a person whose religious convictions prevent him or her from entering a church related building for voting purposes to register and vote by absentee ballot actually makes the First Amendment challenge moot. The second case that we know of is Oterra versus State Election Board of Oklahoma that came down in the 90s. There, the 10th circuit again ruled that using a church as a polling place was constitutional. And then the most recent case that we know of that wended its way up through the courts was Rabinowitz versus Anderson in 2007. And the court ruled there that the use of the church as a polling place did not violate the Establishment Clause and that case was then dismissed by the 11th Circuit.
Alison Gill: I can't help but wonder how this issue would fair today if it went to the Supreme Court just because of the recent changes in how we're looking at this type of law. And if you look at historical practices and understandings and think about it that way, I think it's fair to say that elections have been held in polling places have been in churches since the founding of the country. I mean likely, I'm just guessing there, but I think that's accurate. So in that case, I feel like we'd be even a tougher ground these days if we wanted to of challenge it in this way.
Monica Miller: I think it would depend kind of who the challenger is and on what basis. I think that there actually is a quite compelling case from a religious group. I would think that a religious group that is confronted with where they're asked to kind of scrub their church, they're the only place in town that say, cause the basis for these rulings, as you were alluding to is that we want access to the polls. And there's rural areas where there might be very few places where you can open up and the long lines could be themselves some form of voter suppression. So we get that some churches can open up their places and use the non consecrated parts of the church of this secular aspects of it where it just looks like a big auditorium. And that was the basis for upholding in those two circuit court opinions like the crux of it. And the 7th Circuit gets into this in the Elmbrook case where they had found unconstitutional use of a religious venue in the public school context, they were juxtaposing that against this polling place thing. And they said, Well, when you do it in the polling examples, most of those now we know that's not actually born out by the true facts, but they were saying most of the time those votes, those polls happen in parts of a church that are not decorated with Christian iconography. But at the same time, if you're the only church in town and they're saying, "Oh, you have to actually cover up your iconography or this is too much," you start to get into really snickety entanglement issues that the churches don't want the government telling them what to do. And that's what at least the 7th Circuit express deep concerns about the converse, which would be telling the church that they need to remove certain things in order to be appropriate for public presence. So they're already recognizing this is a built-in problem. We shouldn't be relying on churches for this. This is like a Plan C, but really we should have enough public facilities like schools and firehouses and that kind of thing to do this without churches. Yeah, I mean that's where I think any success would be in this day and age would have to be brought by. And I just described one scenario, not maybe the pinnacle one we're describing, but we all get complaints from religious individuals who attend church or who had no problem voting in the church cuz they assumed this stuff would be covered up or not overly religious only to find Jesus everywhere and all this, these other violations. So I don't think that an atheist saying that this coerced me would at all fly in Alito's court.
Rebecca Markert: Well, to Alison's point, I don't think we have to wonder at all. I think we know where the Supreme Court would fall on this issue. And I think Monica's right to it depends on who's bringing the challenge. Back in 2016, the Islamic Community Center Mosque had been used as a polling location from 2010 to 2016. But in 2016, people found out that it was being used as a polling location. And I can't remember exactly what happened, but I think people got notice of your polling location is here. People in Boca Raton got upset that they were being forced to go to a mosque in order to vote. There was public outcry and the mosque was actually removed as a polling location prior to the primaries because of this community outcry. And so I think that like Monica was saying, if it was an atheist who was complaining about it or a Muslim, it would be a different story. But if Christians go and say hey, or a church goes to the court and says, The government made me cover up Jesus so that people who came into the sanctuary of our church didn't see this crucifix lording over them while they were casting their ballads like this is persecution and needs to stop. And that is the type of case that would find its way up to the Supreme Court.
Liz Cavell: Yes, They would love that cert petition
Rebecca Markert: <laugh>.
Monica Miller: Yeah. Well one of the complaints that we got at AHA said, "I voted today and my voting location is was this Christian center in Columbus, apart from the Calvary Crosses, voters are made to walk past a display containing a wide variety of tracks, including one saying quote 'Satan is God of this world.' I find this extraordinarily offensive. Is there anything that can be done?" In other words, this was a person that was fine voting in a Christian center. They're presumably Christian. They were aware that there was the calvary crosses there cause that's what you would find in a church. But then they did not like that there was this pro satanist material that were aligning the church. But because of election laws, they can't say that only some materials can be on this property or not. So I think the only way to rectify this would be someone, a client like that that is Christian and is offended by something that they see.
Liz Cavell: So we know that the courts don't view this as an Establishment Clause problem. And so we know that we're not gonna get any relief in the courts in terms of having an all secular space for Americans to do their voting. But we wanna talk a little bit about, there are some really great policy reasons why this is a terrible idea. We've been talking around it for a while, but Monica mentioned earlier there's some great social science data about why the physical space that we vote in really does matter. It's not just a question of, "Oh, well we just need a place to vote. And a church is as good as any place." I mean, it really does influence voting behavior where we vote and what the environment looks like. And so there are some really great policy arguments to be made here. And even if we're not making them to courts, there is definitely power. Like Rebecca talked about the mosque example of just squeaky wheels getting grease. They contacted their board of elections or their clerk and enough people were displeased that they got their polling place changed. So it's not gonna be through the courts, but there can be political pressure brought to bear. So Monica, what were you talking about when you said social studies?
Monica Miller: The phenomenon that we're describing is this one that social scientists are calling priming. And priming is really just this, what we kind of know as subliminal messaging, but it's the idea that when we counter stimulus such as a verbal or visual cue, it influences a response later and it's usually an unconscious response. And the studies are showing time and time again that voting in church buildings is priming attitudes and beliefs that elicit more of course conservative votes because they're conservative places of worship. So what happens is that when folks go into a church, even if they don't think that it's going to influence their outcome of how they vote, it ends up swaying them one way or another without them being aware. So for one study example, and this is even outside of just a church example, showed that a store playing traditional French or German music and prime shoppers to buy French or German products. So playing French music prompted people to buy more French wine. One of the first studies done on the issue of churches, specifically for polling places was a study done by Baylor University, which was published in the International Journal for the Psychology of Religion. And it found that having a church in clear sight can clearly influence people's answers to certain questions. The first study that was done was the Stanford University study, and Baylor was going off of that study. The Stanford University study basically showed the same effect when looking at how people's voting places influence their vote. And a Stanford researcher, Jonah Berger, said, "Voting in a church could activate norms of following church doctrine. Such effects may even occur outside of an individual's awareness." So it was that Stanford study that prompted the Baylor study and that went on to basically prove that people were more likely to oppose same sex marriage on a ballot measure. They were more likely to oppose abortion if they voted in a church. There was, for instance, one study that said, after controlling for the age, race, sex and party identification for each voter in 1,468 polling places in the 2006 general election, 83% of people voting in churches supported establishing a definition of marriages between one man and one woman. While 81.5% did so in secular locations, which was a significant difference to social psychologists. There are more studies that were done showing bigger gaps between the predicted outcome versus being in a church. One of those was updated in 2020. That's Jordan LaBouff study "Differences in attitudes toward outgroups in religious and nonreligious contexts in a multinational sample." All of this is to say that the studies are showing that there is a clear connection between conservative votes and conservative issues being voted on and the location of the pulling place. And that bears out in all the other contexts. People are more likely to favor public school measures when they're voting in a public school, for instance, that Stanford research showed that. So we are concerned from policy standpoint that priming will continue to influence elections and especially these smaller areas where these margins are really, really important.
Alison Gill: That's a really interesting point, Monica, and I think it combines well with what Liz was saying earlier about advocacy and the way we actually influence this is not through the courts, but through advocacy. It really shows the importance that we as secular advocates across the country, get more engaged with how voting places and voting selection occurs, especially in cities. Because right now, in certain states across the country, there's really an effort to attack access to voting, especially for people of color, especially in urban areas. And so there's a lot of advocacy and efforts focused on this, but it shows how these efforts of go hand in hand. And I think there's room for secular people to sort get engaged with those and say, Okay, well what we're trying to fix this, let's also make sure we fix it in a way that doesn't compound the problem. And that also totally gets more access available to everyone.
Monica Miller: And just to also back up with some concrete examples too of this, it's not just subliminal messaging. I mean that's where the studies are showing this subconscious response. And that's in, that's a little bit of a reaction to the case law that we discussed where they were sort of turning it on the susceptibility of children we're concerned with. So public schools, no, you can't use these venues for public school events, but adults are not as susceptible to coercion. And what these studies are undercutting is that idea that it doesn't really matter because it's subliminal, it's, we're not aware of it. So it's by definition, by the definition of priming, is this unconscious shift in your mindset based off of what you see these visual cues. But some of this is not very subtle. One of our members came to us at one of these election cycle years and they were in California and they were confronted with a large marble plaque dedicated to the unborn children who are killed by abortion. And that display contained a quote from the Bible justifying the notion that the soul is alive in the womb. So you walk by that or you're staring at that for 45 minutes while you're waiting to go vote. It could have an effect on someone who doesn't have an opinion yet, or a teenager or someone. It's not just these adults that are gonna be persuaded or subtly persuaded. There's very overt examples of this happening, even in progressive places like California.
Rebecca Markert: I just think of one of the complaints that FFRF received a few years back where the Billy Graham Evangelical Association, put out this campaign, Vote Biblical, and it kind of intersects both of these complaint areas that we're talking about. Originally, the pastors were going around telling their congregants to vote biblical, and we didn't really complain about that to the IRS because what the hell does that even mean? And they're not mentioning a candidate and they're not mentioning a particular issue. There's a lot of different things that could fall under that, I guess. So it wasn't really clear to the person who was listening to that or reading that communication, whether that was actually a legal campaign intervention. But then we received complaints that posters that read Vote Biblical were posted in churches that were being used as polling locations. Well, now that's a different game. So that is this priming subliminal message. You're sitting there staring at that, Well, you're waiting to vote in a presidential election or whatever other election there is, And you're wondering, Well, what does biblical mean? And maybe I should be a more moral person. And I don't know what goes through your head when you're reading that, but it did change the scenario a little bit.
Liz Cavell: Monica, you had in our outline, I think one of the complaints you got from an actual person on the Board of Elections, that's who was like, I'm battling against this every single time this comes up, which is everyone on the board just immediately whenever there's a need for a new polling place is like, What's the nearest church? There's this desire to go to the nearest church as a first resort, not a last resort. So we're not talking about using churches to make sure that we have maximal access for voters. We're just using it as this default and this, we're using it as though it's a secular space. And I know my usual voting place is in elementary school on my street, but when they had to close school voting for Covid, So for I think two elections, my voting place was moved to a church. And I mean, I live in, on the east side of Madison, there's like a million places one could vote, but the kind of backup place was a church in my neighborhood. And I'm sure everyone on this call has at one time or another voted in a church, or maybe not. But I mean, it's not just in rural areas where there's a dearth of secular locations. When I lived on another part of town, I voted in a Hy-Vee grocery store. And other than the damage to my wallet from all the impulse buying of candy, that happened, that was a completely fine. I was just like, Wow there's so many other things besides churches that we don't even begin to tap.
Monica Miller: My brain only was thinking about public quasi public government buildings or community buildings. And obviously the government can't really force private entities to open up their doors, But there's a lot of partnerships that go on in small communities, and I'd certainly rather people be buying some extra candy bars, maybe some tabloids than the Jesus sculpture that says, "Don't kill dead babies."
Rebecca Markert: I don't know. I think that Liz probably supported any sort of ballot initiative supporting the Sugar lobby. Yes.
Liz Cavell: Yes. All those ballot initiatives. I was definitely primed. I don't know what I was primed for, but I was primed.
Rebecca Markert: Well, the only time I had to vote in a church was when I lived in the DC metro area. I lived in Arlington, VA. And had to vote at a church. And I remember having to walk to it and I could not find it. It took me a very long time. But here in Wisconsin, I vote at the library.
Alison Gill: Yeah, that's what I do in, I live in Silver Spring, voted to the library when I was in DC, though. I agree. Voted in a church.
Liz Cavell: Go figure.
Alison Gill: I mean, there's so many schools around libraries, even if you're gonna go private, I mean, well, there's post offices. Why don't we have people vote at post offices? But if you're going to a private, why not like a bank or a hospital or something like that, that is very publicly oriented.
Monica Miller: This is not the issue that we could probably win in the US Supreme Court. But it seems like if there's a lot of very obvious secular alternatives like Firehouses, Public Schools, all the things you guys have enumerated, maybe short of the grocery stores, and there's time and time again going to the religious venue. I mean, that's showing something that the case law doesn't seem to.
Alison Gill: I mean also it seems to me like the churches probably want it to be there in a lot of cases. Right?
Monica Miller: Of course! Cause they get a prime people.
Alison Gill: Even if we ignore that, let's say they don't know anything about psychology, it's just better for their constituents, right? Cause they're students all know where it is. They're more likely to vote. It's more accessible for them. They're used to walking in the building. New people might learn about them and walk in the building. So they might put pressure on governments to have it be their places.
Rebecca Markert: Well, and I'll also say that there are a lot of schools, school districts right now that don't want to have voting in their buildings because of security concerns. And I think as a parent of young children, and it feels like daily news of shootings in schools, I don't necessarily blame them for not wanting to have large swaths of people coming in on a Tuesday in November when my kids are there. But I think that just means that we need to either move Election Day to a weekend or make it a national holiday, and so that all of these buildings are empty and we have places to go, and then more people can vote.
Rebecca Markert: That's it for today's episode. I'm Rebecca Markert.
Monica Miller: I'm Monica Miller.
Alison Gill: I'm Alison Gill.
Liz Cavell: And I'm Liz Cavell. Please follow us on Twitter and on Facebook. Find out more about the podcasts online we-dissent.org.
Rebecca Markert: We Dissent is a joint production of the Freedom From Religion, Foundation American Atheists, and the American Humanist Association. It is hosted by attorneys Liz Cavell, Alison Gill, Monica Miller, and me, Rebecca Markert. Special thanks to FFRF legal fellow Sammi Lawrence, who assisted with producing this episode. Other production support comes from Greta Martens, audio engineering provided by Audio for the Arts based in Madison, Wisconsin.
Thanks for listening.
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