“We will not allow people of faith to be targeted, bullied or silenced anymore,” Trump said before the signing.
The Johnson Amendment has been rarely enforced, however. Even when pastors have gone to their pulpits explicitly to violate the law, they have not come under scrutiny by the IRS. More than 2,000 pastors have publicly defied the Johnson Amendment in recent years in organized demonstrations. Of those, only one has been investigated. None have been punished via fines or jail time.
“Pulpits in America have been among the freest places in the world,” noted the late Dean M. Kelley, who spent 30 years working on religious liberty issues for the National Council of Churches.
Despite concerns about pulpit freedom, almost no one has ever faced criminal prosecution for something said from the pulpit. Kelley, in his five-volume, 493-page book on religious liberty, could think of only one exception: James L. Delk.
Delk, it would seem, is the exception that proves the rule. Delk was arrested in Kentucky in 1914. A Pentecostal or “Holy Roller,” in the language of newspapers at the time, he was holding a summer tent revival in the town of Science Hill. He was preaching against sin and telling Kentuckians they needed Jesus to free them from their bondage.
He was arrested and put in jail with charges of obscenity, indecency and disrupting the peace.
There wasn’t a lot of information about the charges, initially, and some Kentucky newspapers got a bit carried away making up accounts about the preacher’s breach of the peace.
For example, one paper in Richmond, about 50 miles north of Science Hill, reported that Delk had been angered because some of the fashionable women in town weren’t taking his sermons seriously. There was a woman in attendance who had “a pink-nosed poodle snuggled in her arms,” and Delk lost his temper.
The rumor was false.
Another paper, from Hartford, about 160 miles to the west, came up with a wilder version. The paper reported that the revivalist got into a fight with some performers from a carnival. The carnival had an exotic dancing exhibit, according to the paper, in a tent set up opposite Delk’s revival tent. As people gathered to hear Delk preach, the “ballyhoo” or “barker” called to them to tell them he had better entertainment on offer in the dancing tent.
“Drop a thin dime,” he shouted, “and see the wonders of Egypt!”
Delk, in the fanciful account, preached loudly against the carnival and the dancers, warning the Kentuckians of the evils of lust and the consequences of sin. He apparently got quite colorful in his condemnations, until the dancer herself decided she’d had enough.
The dancer — whom the paper called Cleopatra — walked across the street to the revival tent, went “down the saw dust trail” like any sinner seeking God’s forgiving embrace, and smacked Delk in the head with an umbrella.
She hit him right in the “clergical cranium,” in the purple prose of the paper, and thus the peace was breached.
That account wasn’t true either.
Here’s what really happened: Delk was preaching against sin. He was known to be a compelling preacher. He starting talking about the sin of lust. You didn’t actually have to have sex with a woman to sin, Delk told the men in the audience. Just the way you looked at someone could be evil.
“Some men,” Delk preached, “will stand around the depot, stores, the post office and street corners and watch the women pass and size them up; the foot, the ankle and form, and they would be willing to give five dollars for the fork.”
Some in the audience didn’t think he said “fork,” but another word. It’s possible the pronunciation had to do with Delk’s Tennessee accent, but more likely, it was a fudge word, a word people use instead of something foul.
For those gathered, it was foul enough.
People shifted uncomfortably in their seats. Some young people laughed irreverently.
“If you should go to the lowest dives in the country,” one respectable person opined, “we doubt if you would hear as bad language as he uses in the pulpit. If this is the gospel of Jesus Christ, may God pity us.”
The foul language and description of leering was reported to authorities, and Delk was arrested. According to court records, he was accused of “using obscene, vulgar, and indecent language in the presence of and to an assembly of people, men, women and children, which language was obscene, indecent and offensive, and was calculated to insult the hearers and provoke an assault and was in other respects disorderly.”
That was, apparently, the only time such a prosecution has ever happened.
Delk was let out on bail and finished the revival. There were some who went forward and accepted Jesus as Lord and Savior. There were some who recommitted themselves to Christian living.
Delk went on trial in the fall.
The defense argued that the revival couldn’t have been too disturbing to the peace. No one walked out of the sermon. Some 16 witnesses testified that, at the end, “many went forward and professed salvation.”
The Commonwealth of Kentucky, on the other hand, called six witnesses who told about the tittering and the general discomfort following the preacher’s remarks about men who’d give “five dollars for the fork.” The commonwealth’s witnesses said they personally were “disturbed and humiliated” by Delk’s language.
Besides, the prosecution said, legally a breach of peace did not require that peace be actually broken. It was enough, as the law was written, to prove that “acts tending to the disturbance” and “disquiet” of the community had been committed.
A jury found Delk guilty. He was sentenced to 10 days in jail and fined $50, plus $17.50 in court costs.
On appeal, Delk argued that it wasn’t right for the court to interpret his sermon as a breach of the peace. He was speaking from the pulpit and that ought to be protected. In today’s terms, he argued for “pulpit freedom.”
The court didn’t buy it.
“There was no possible excuse for the use of such language in the pulpit,” the appeals court judge wrote. “It does not avail the appellant to say he has the right to propagate his religious views; the right is not denied; but one will not be permitted to commit a breach of the peace in the guise of preaching the gospel.”
The court reduced the fine by $5 but otherwise ruled against the preacher. So in the Kentucky courts in 1914 and 1915, Delk became one of the few American ministers, and maybe the only one, ever convicted for something he said in a pulpit.
Delk went on to have a long career. He became one of the few white ministers in the majority-black Church of God in Christ denomination. He was known for fierce opposition to racism, going so far as to preach that supporters of segregation were not real Christians.
He also got involved in politics. He ran for governor of Missouri in 1932. His platform was the “abolition of capital punishment, poorhouses and potters’ fields.” He lost but, undeterred, went back to Kentucky and ran for five or six other offices in the 1940s through the 1960s. He lost all those races, too.
A reporter asked him in the 1960s why he was always running for political office since he never seemed to get any votes.
Delk said, “Don’t worry about me, son.”
At the time, of course, Delk couldn’t have endorsed himself for office from the pulpit without running afoul of the Johnson Amendment. He was, according to Trump, one of those being bullied and silenced by the law.
But it’s hard to imagine Delk silenced. The one person who really was imprisoned for something he said in a pulpit doesn’t seem like he needed the protection of an executive order to say what he believed he was supposed to say.
Daniel Silliman is a Lilly Fellow at Valparaiso University and writes about religion in American culture.