Can Your Church Endorse a Candidate? What the Justice Department’s New Filing Actually Changes

On April 28, 2026, the U.S. Department of Justice filed a brief in the Fifth Circuit Court of Appeals in National Religious Broadcasters v. Bessent that sent a jolt through church law circles across the country. Headlines ranged from "DOJ Sides with Churches Against Johnson Amendment" to more cautious accounts. Georgia churches and pastors have been asking questions about it since.

Here is an honest, plain-language account of what the filing actually says, what it does not say, and what it means for your church right now.

What the Johnson Amendment Is and Why It Matters

The Johnson Amendment is a provision in Section 501(c)(3) of the Internal Revenue Code, enacted in 1954 under then-Senator Lyndon Johnson. It prohibits all tax-exempt organizations — including churches, charities, and nonprofits — from participating or intervening in political campaigns on behalf of or in opposition to any candidate for public office.

Practically, this means a church that endorses or opposes a candidate from the pulpit, in its bulletin, or through its official communications risks losing its federal tax-exempt status. That is not a fine. It is not a warning. Loss of 501(c)(3) status eliminates the tax deduction for every dollar ever given to that church. For most congregations, the consequences would be severe.

Churches have debated this law for decades. Some argue it is an unconstitutional restriction on religious speech and free exercise. Others argue it appropriately prevents tax-exempt institutions from becoming vehicles for campaign spending and partisan political activity. The legal debate has been simmering for years.

How the Case Got Here

National Religious Broadcasters, two Texas churches (Sand Springs Church and First Baptist Church Waskom), and Intercessors for America sued the IRS challenging the Johnson Amendment's constitutionality. In July 2025, the IRS and the plaintiffs reached a proposed consent judgment under which the IRS would agree not to enforce the Johnson Amendment against a house of worship speaking "to its congregation, through customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith."

That proposed agreement was significant. It would have created a real, negotiated carve-out from enforcement — a practical safe harbor for certain forms of pastoral speech.

But the district court never approved it. On March 31, 2026, Judge J. Campbell Barker of the Eastern District of Texas dismissed the case on jurisdictional grounds, holding that the Tax Anti-Injunction Act barred the lawsuit entirely before the court could examine the agreement's merits. The proposed consent judgment, however meaningful in theory, had no legal force.

What the DOJ Filing Actually Says

National Religious Broadcasters appealed. The case is now pending in the Fifth Circuit as National Religious Broadcasters v. Bessent, No. 26-40237.

On April 28, 2026, the Department of Justice filed its brief as defendants-appellees — meaning it filed on the government's side of the appeal — but took the position that the district court got the jurisdictional question wrong. The DOJ asked the Fifth Circuit to reverse the dismissal on the narrow ground that the Tax Anti-Injunction Act does not apply to the proposed consent agreement.

That is a procedural argument, not a substantive one about religious freedom. The DOJ did not argue that the Johnson Amendment is unconstitutional. It did not argue that churches have an unrestricted First Amendment right to endorse candidates from the pulpit. It argued that the lower court should not have dismissed the case before examining the consent agreement on its merits — and explicitly declined to endorse the full scope of the religious groups' First Amendment arguments.

The distinction is important. A DOJ brief that says "the court should have reviewed this deal" is a very different legal position from a DOJ brief that says "churches can endorse candidates." Only the first is what was filed.

What Has Not Changed

The Johnson Amendment remains the law. No court has struck it down. The Fifth Circuit has not yet ruled. The Treasury Department announced in April 2026 that it will issue guidance on the Johnson Amendment's application to religious organizations — but as of today, that guidance has not been issued and has no legal effect.

The proposed 2025 consent agreement was never approved by the district court and carries no legal force.

A Georgia church that endorses a candidate for political office from the pulpit, through its official newsletter, or through other institutional communications is still at risk of losing its 501(c)(3) tax-exempt status. The law governing this has not changed. Proceeding as though the DOJ brief changes the practical risk would be a serious mistake.

What This Might Become

The Fifth Circuit's ruling will matter considerably. If it reverses the dismissal, the case returns to the district court, where the proposed consent agreement will be examined on its merits — including whether the IRS's agreement was a lawful exercise of enforcement discretion and whether it survives scrutiny under the First Amendment.

If a court ultimately approves a consent agreement along the lines of the July 2025 proposal, it would create a meaningful legal safe harbor — specifically for pastoral speech to a congregation, through normal church channels, on matters of faith viewed through a religious lens. That is a narrower protection than "churches can endorse candidates," but it is real.

The Treasury guidance, whenever it arrives, may define the outer limits of what the IRS treats as prohibited "participation" in a political campaign — and may be more useful to Georgia churches than any court ruling, because it will be the document that IRS agents actually follow.

But neither the Fifth Circuit ruling nor the Treasury guidance exists yet. Planning around them now is premature.

What Georgia Churches Should Do

First, do not assume the law has changed because of the DOJ filing. The risk to your church's tax-exempt status from direct candidate endorsements has not been eliminated. Any reporting that suggests otherwise is running significantly ahead of the legal reality.

Second, understand that the Johnson Amendment has never prohibited all political speech by churches. A church can and always could preach on moral and social issues — poverty, justice, the sanctity of life, the rights of the vulnerable, the nature of faithful citizenship — without endorsing specific candidates or parties. That distinction has always existed in the law and remains important today.

Third, if your church leadership is considering activities that touch on candidates, voter guides, campaign events, political contributions from church funds, or endorsements from the pulpit, those activities should be reviewed with a church law attorney before they occur. The cost of a single legal consultation is trivial compared to the cost of a 501(c)(3) audit or revocation proceeding.

A Note From Our Firm

Attorney Shawn Council has counseled Georgia churches and faith-based organizations on legal matters for 28 years, including 501(c)(3) compliance, governance disputes, property matters, and the legal boundaries of protected religious and political speech. Our firm understands that these questions are not merely legal — they go to the heart of how a church understands its calling and its relationship to the surrounding community.

If you have questions about how these developments might affect your church or ministry, we welcome the conversation.

This article is general information about ongoing litigation and publicly available legal developments. It does not constitute legal advice about your church's specific situation, and reading it does not create an attorney-client relationship. Tax law and IRS enforcement policy can change; consult a licensed attorney about your organization's specific circumstances.

Call our office at (678) 466-6910 or visit us at 36 Highway 138 W, Suite 202, Stockbridge, GA 30281.