NRB’s ongoing case challenging enforcement of the Johnson Amendment against churches and religious organizations is moving forward with new filings from the federal government and organizations opposed to NRB’s position.

Last Monday, the U.S. Department of Justice filed a brief with the Fifth Circuit Court of Appeals, asking the court to reverse the dismissal of the case brought by NRB and other Christian organizations. The case centers on whether the court can memorialize in a court order the government’s agreement not to enforce the Johnson Amendment against certain church communications.

The question before the Fifth Circuit now is not whether the Johnson Amendment is constitutional, but whether the lower court was correct to dismiss the case under the Anti-Injunction Act, a federal law that, among other things, limits when parties can bring court cases to interfere with the collection or enforcement of federal taxes.

In March, the district court judge dismissed NRB’s legal challenge, concluding that the Anti-Injunction Act and other procedural restrictions prevented it from approving an agreement between the government and the plaintiffs. In April, NRB appealed the decision to the Fifth Circuit. NRB has been leading this challenge since August 2024.

The DOJ’s new Fifth Circuit brief argues that an exception to the Anti-Injunction Act applies in this case and that the lower court’s dismissal should be reversed. In other words, the government agrees with NRB that the case should be allowed to continue, rather than end on procedural grounds.

“The question before the Fifth Circuit now is … whether the lower court was correct to dismiss the case. … The DOJ is telling the Fifth Circuit the answer is no.”

The brief also raises a significant constitutional question involving the church autonomy doctrine. According to the DOJ, enforcing the Johnson Amendment against the narrow category of church speech addressed by the agreement conflicts with the core constitutional principle that civil courts cannot interfere in ecclesiastical matters.

The case is ultimately about more than tax status. It raises questions about the boundary between government regulation and the internal religious activities and communications of churches.

Monday’s filing is significant because the federal government has doubled-down on its position that the case should not have been dismissed on Anti-Injunction Act grounds. While it raises different reasons than NRB, the DOJ largely agrees with the desired outcome.

Multiple organizations, including Americans United for Separation of Church and State and the Freedom From Religion Foundation, have filed amicus curiae briefs in the last few days opposing both NRB and the DOJ’s positions.

The next step belongs to NRB. In the coming weeks, NRB will file a reply brief addressing the arguments raised by the DOJ and the other opposed organizations. The Fifth Circuit will then consider the arguments presented in the appeal, decide whether it would like to hear oral argument from the parties, and ultimately determine whether the lower court’s dismissal should stand. For now, the central question remains narrower than whether the Johnson Amendment survives: Should this case have been dismissed before the parties’ agreement could be enforced or the underlying questions could be fully considered?

The DOJ is telling the Fifth Circuit the answer is no.