Justice Department Backs Fifth Circuit Appeal Over Johnson Amendment

The Justice Department asked the Fifth Circuit on September 21, 2026, to revive a July 2025 agreement restricting IRS enforcement of the Johnson Amendment against certain church communications about politics.

The agreement arose from a case brought by the National Religious Broadcasters, Intercessors for America and two Texas churches. It covers speech to a congregation connected with religious services, including sermons and other customary forms of church communication.

The dispute is National Religious Broadcasters v. Bessent, No. 26-40237. Bessent is the government official named as appellee in the case caption.

Judge J. Campbell Barker rejected the agreement in March 2026. The U.S. District Court for the Eastern District of Texas held that the Anti-Injunction Act barred it.

The agreement covers a defined setting for church speech

The government’s brief describes the communications covered by the deal as speech:

“to its congregation, in connection with religious services through its customary channels of communication on matters of faith.”

The terms focus on the audience, the connection to religious services and the means of communication. They address political messages in that religious setting, rather than creating a general exemption for church involvement in campaigns.

The department argues that the agreement reflects the church autonomy doctrine. In its view, the IRS cannot enforce the amendment against a church in the particular circumstances described by the deal.

That position is narrower than the relief sought by the religious groups. The department is asking the appeals court to restore the agreement, not to endorse every argument the plaintiffs have raised against the law.

The appeal turns on the law barring suits against tax collection

Barker concluded that the Anti-Injunction Act blocked the settlement. The statute was the basis for rejecting the agreement, rather than a ruling on the groups’ broader constitutional claims.

The government says the district court used the wrong analysis. Its brief argues that an exception applies when the government has no likelihood of prevailing on the merits and equity jurisdiction otherwise exists.

The immediate question is therefore whether the agreement can take effect despite the statutory barrier identified by the district court. The brief does not ask the appeals court to decide the entire constitutional dispute as a condition of restoring the deal.

The groups seek a broader constitutional ruling

The appellants also seek a ruling that the amendment violates the First and Fifth Amendments. Their position challenges the restriction’s application to churches more broadly than the agreement the government is defending.

The groups argue that the law improperly restricts church speech and free exercise rights. A ruling for the government on the settlement issue would address the agreement’s defined setting; the groups’ constitutional request reaches further.

If the appeals court accepts the department’s position, churches could regain protection for sermon-related political speech and other communications made through customary religious channels, but only within the settlement’s terms. Such a ruling would not itself eliminate the restriction across all political activity by religious organizations.

If the court rejects the settlement, the broader constitutional challenge may continue separately. The two legal paths are related, but they do not seek identical relief.

The restriction distinguishes campaign activity from other political work

The amendment is described as a tax law dating to the 1950s. It conditions religious organizations’ tax-exempt status on avoiding political campaign activity.

Churches have historically had more room to support or oppose ballot measures. They may also lobby on legislation, so long as lobbying does not become a substantial part of their activity.

Church-law commentary characterizes IRS enforcement of the restriction as historically sparing. The appeal concerns the settlement’s specified church communications, not a claim that every political statement by a religious organization falls outside the tax rule.

The 2024 lawsuit produced a settlement and a separate constitutional track

The National Religious Broadcasters and Texas churches filed suit in 2024, seeking to overturn or limit the amendment’s application to churches. The government and religious groups reached their agreement in July 2025.

A law-school analysis linked the alignment between the IRS and the National Religious Broadcasters to the Supreme Court’s Catholic Charities decision in June 2025. The analysis said the parties viewed that decision as strengthening the constitutional challenge as applied to religious institutions.

The settlement now before the appeals court would address a specific form of church communication. The constitutional claims, by contrast, ask the court to examine whether the restriction itself can stand under the First and Fifth Amendments.

The case remained pending as of September 23, 2026. The accounts describing the appeal did not reproduce the full brief or identify all its signatories.