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The Advocate

Everyone Will Call This the Week Washington Freed Pastors to Endorse From the Pulpit. Read the Order Being Appealed. The Judge Never Reached the First Amendment, and the Rule He Applied Is What Protects You From the Next Administration.

The IRS cannot hand a court power by agreeing to lose. That rule cuts both ways, and that is the point.

Everyone Will Call This the Week Washington Freed Pastors to Endorse From the Pulpit. Read the Order Being Appealed. The Judge Never Reached the First Amendment, and the Rule He Applied Is What Protects You From the Next Administration.

Strip the case to its principle and it is not about preaching at all.

A court's power to decide a dispute does not come from the parties agreeing that it should have power. That is the whole of it. Everything else here is detail.

Here is the detail. On August 28, 2024, National Religious Broadcasters, Intercessors for America, First Baptist Church Waskom and Sand Springs Church sued the IRS in the Eastern District of Texas over the Johnson Amendment, the 1954 provision that conditions 501(c)(3) tax exempt status on staying out of political campaigns. Their claim was that it chills speech they would otherwise engage in, and that the IRS enforces it unevenly.

Then something unusual happened. On July 7, 2025, the plaintiffs and the government stopped fighting and jointly asked the court to enter a consent judgment. The two sides had agreed on what the law means.

The stipulated language is broader than a settlement usually is. The parties agreed that when a house of worship “in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith,” it neither participates nor intervenes in a political campaign within the ordinary meaning of those words. On that reading the Johnson Amendment does not reach the pulpit at all, and the parties jointly asked the judge to enjoin enforcement against the plaintiff churches accordingly.

Judge J. Campbell Barker did not enter it. On March 31, 2026, he dismissed the case for lack of subject matter jurisdiction.

Note what that is not. It is not a ruling that the Johnson Amendment is constitutional, and it is not a ruling that pastors may not talk about candidates. Barker never reached the First Amendment, because he concluded he had no authority to reach anything. The Tax Anti-Injunction Act bars suits brought to restrain the assessment or collection of a tax, and the Declaratory Judgment Act carves tax cases out of declaratory relief. The Johnson Amendment is a condition of exempt status under section 501(c)(3), so an injunction against enforcing it runs into both bars.

Then the sentence that is the actual centre of the case. As reported by The NonProfit Times, Barker wrote that the government “cites no authority for its position that its own consent to an injunction regarding a condition for tax benefits creates jurisdiction.”

The IRS cannot hand a court power by agreeing to lose.

The plaintiffs noticed an appeal on April 22, 2026. The case is now National Religious Broadcasters v. Bessent, No. 26-40237 in the Fifth Circuit. On July 14 three amicus briefs urged reversal, from the Home School Legal Defense Association and Texas Values, from a group led by America's Future, and from the American Center for Law and Justice joined by Representatives Jeff Crank of Colorado and Mark Harris of North Carolina. And on September 21, according to Bloomberg Law, the Justice Department filed its own brief telling the Fifth Circuit that Barker got it wrong.

Concede the strong version of their argument. In CIC Services v. IRS, 593 U.S. 209 (2021), the Supreme Court held that the Anti-Injunction Act does not bar every suit with downstream tax consequences and that courts should look to the objective aim of the suit. The ACLJ says the aim here is a speech restriction, not a tax. Michael Farris, NRB's general counsel and lead counsel, puts the equitable point plainly: nobody has to violate a law in order to challenge its limits on speech or religion. Telling a church to endorse a candidate, lose its exemption, and then sue for a refund is a brutal way to make it vindicate a First Amendment right. That argument may well win.

But look at the structure the churches want loosened, and ask who else lives inside it.

A consent judgment is a bargain between the government and one party that a court then makes binding. If the government's own agreement can supply jurisdiction, the reach of the Johnson Amendment is settled by whoever holds the IRS and whichever plaintiff they choose to lose to. A friendly administration stipulates a broad protection for houses of worship. Four years later a hostile one finds a plaintiff of its own and stipulates something narrower, and no church outside that caption gets a hearing on either deal. The rule Barker applied is what makes both impossible.

Americans United for Separation of Church and State made the mirror image of this argument below, opposing the consent judgment because secular nonprofits would be bound by a carve out they had no opportunity to contest. You do not have to share their view of church and state to see that the objection is structural rather than partisan. It is the same objection, pointed the other way.

Barker's last move is the one I would press on. He wrote that Congress “is the appropriate body to weigh the relevant, policy laden considerations,” including the harshness of the present law. He is right that this is Congress's problem. He is also describing a Congress that has left a rarely enforced speech condition on the books for seventy two years, which is exactly the arrangement that produces chill without producing a defendant. Both things are true, and the case is hard because they are.

So watch the right question. If the Fifth Circuit reverses, the headline will say churches won. What they will have won is a courtroom, not a holding. The First Amendment question is still unasked, and the judge who finally asks it is under no obligation to like the answer the parties agreed on in 2025.

The district court's order is public on the docket for 6:24-cv-00311 in the Eastern District of Texas, and the appeal is No. 26-40237. Read the order before you read anyone's statement about the order.

We read the filings so the argument you repeat at dinner is the one actually in the record. If that is worth something to you, the membership is what pays for it.

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