This past Thursday, the US Supreme Court issued its ruling in Minnesota Voters Alliance v Mansky, regarding a Minnesota statute which prohibited “political attire” from being worn at the polling location on Election Day. The decision has important implications for pro-life groups and Churches relative to the midterm elections this year.
At issue was whether the statute violated the First Amendment freedom of speech by preventing voters from expressing their views. A voter was prevented from voting (but later was allowed to vote) for wearing a T-shirt that said “Don’t Tread On Me” (associated with the current Tea Party, but historically significant from hundreds of years ago) and a button which read ” Please I.D Me” (referring to voter identification law which was never passed which would have required voters to show ID when they vote).
The voter claimed the statute violated his free speech rights under the First Amendment, and that the statute was vague and overbroad. Minnesota argued that the State had a right to the orderly and peaceful process at polling places on Election Day, and to make sure voters weren’t intimidated.
In a 7 to 2 decision, Chief Justice Roberts wrote that the voter wins here because the Minnesota statute was found to be unconstitutionally vague and overbroad. It simply did not define what “political” meant for purposes of “political attire.”
Wording that is overbroad or vague creates legal confusion in other areas. Over the course of many decisions, the Supreme Court and lower courts have wrestled with the question of the imprecision of adjectives like “political” when a statute regulates or limits a citizen’s freedom of speech. This is not unlike the problem clergy and nonprofits run into when it comes to the Johnson Amendment and the restriction of political speech. The Johnson Amendment is a provision in the U.S. tax code, since 1954, that prohibits all 501(c)(3) non-profit organizations from endorsing or opposing political candidates. Churches, and most pro-life organizations, including Priests for Life, are 501(c)(3) organizations. Under the provision, these types of entities are unable to intervene on behalf of, or in opposition to, any candidate either directly or indirectly. In other words, clergy are prohibited from doing so from the pulpit, and the organizations are prohibited from doing so in their communications. If they do, they risk losing their tax-exempt status.
But in practice, the provision’s bark is worse than its bite. It is not enforced. The reason is that, like the Minnesota statute, what is “political” is not defined. The law is vague and it does not define the kind of behavior or speech that is prohibited. Endorsing a candidate is one thing; speaking about issues that candidates are also debating is quite another. Is the latter to be prohibited whenever the former is? Again, it’s not defined.
What results is a quite predictable chilling effect on free speech, and a distancing of religious and pro-life organizations from activities and messages that are in fact permitted. Moreover, attorneys – eager to keep their clients out of trouble – will often advise Churches and pro-life groups to keep that distance in a way that ends up compromising their mission. I explore and document this phenomenon in my book Abolishing Abortion (AbolishingAbortion.com). What I mean is that when a preacher or a pro-life advocate is told – as regularly happens — that nothing should be said which favors or discredits a political party or candidate, they put that person and organization in an impossible position.
The Republican Party platform clearly states that the unborn should be protected, and the Democrat Party platform clearly states that abortion is a right. So when a person, Church, or group clearly teaches and preaches that the unborn should be protected and abortion is an act of violence that can never be permitted, that message in fact favors the pro-life party and its candidates, and discredits the pro-abortion party and its candidates. There is no way around it. And neither is there any way around the fact that silence is not an option, on the part of the pro-life group, individual, or pastor.
This impossible-to-follow advice never to discredit a pro-abortion party is the direct result of the failure of the law, in the Johnson Amendment, to define what political intervention is. And that is the same kind of vagueness the Supreme Court has objected to many times, including in last Thursday’s decision.
Johnson would be proud of his legacy. His was an unconstitutional, governmental overreach designed to squash his political opponents’ upper hand, after Johnson was told that those opponents were not doing anything illegal. Indeed, ten years after the Johnson Amendment, the Supreme Court made clear in New York Times Co. v. Sullivan, that this country has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
And we now have a President who believes that profoundly and has taken executive action to protect Churches and pro-life organizations from being punished or intimidated by the Johnson Amendment or any threat of punishment for speaking their mind. Bravo, Mr. President! Thanks to your actions, and to Thursday’s Supreme Court decision, combined with the consistent lack of any meaningful enforcement of this prohibition, this election season 2018 should be marked by a more free, clear and vigorous proclamation, by Churches and organizations, that we have to elect public servants who know the difference between serving the public and killing the public, and that if they do not know that difference, they do not belong in public office!
Learn more about how you can speak up at www.ProLifeVote.com.
Priests for Life is the world’s largest Catholic organization focused exclusively on ending abortion.