Donald Trump signed an executive order yesterday supposedly weakening the Johnson Amendment. Had he actually done this, churches would have the ability to endorse candidates from the pulpit without losing their tax exempt status. Though it’s worth noting that, even with the Johnson Amendment in place right now, the IRS hasn’t punished any churches for playing politics even when the pastors were practically bragging about it. Yesterday’s order was supposed to codify that inaction, telling the IRS to back off if churches got involved in elections.
Not long after the signing, two important things happened.
First, a lot of religious conservatives were quick to complain that the executive order didn’t actually do anything. It didn’t repeal the Johnson Amendment, since only Congress could do that. It was mostly Trump telling the IRS to keep doing what it’s already doing, which is basically nothing.
The executive order also didn’t have anything to say about faith-based discrimination. Some Christians were hoping that Trump would give them permission to avoid doing business with LGBT customers — like bakers who don’t want to make cakes for a same-sex wedding — but Trump avoided the topic altogether yesterday.
The other thing was that the Freedom From Religion Foundation filed a lawsuit against Trump, saying that his order discriminated against atheists. Their argument was that Trump was giving churches a green light to play politics since he was telling the IRS to back off. But that same policy didn’t apply to non-profit groups that cater to atheists. That, FFRF said, was a constitutional violation.
The Freedom From Religion Foundation, a 501(c)(3) nonprofit, contends that Trump is violating its equal protection rights and favoring church groups over secular groups, in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. Trump has directed the IRS to do something for which they both lack any enumerated or implied power: to selectively enforce a legitimate statute based solely on religion.
“Trump is communicating to churches that his administration will not enforce the Johnson Amendment,” says Gaylor. “The IRS needs clear direction that it must enforce the law equally.”
Here’s the beautiful thing about this.
If the lawsuit is allowed to go forward, FFRF is making a compelling case. Of course this executive order singles out religious institutions, giving them permission to break the law. That’s what the order says.
How do you defend against that if you’re the government’s lawyers? You can’t pretend the executive order doesn’t exempt those who talk about “moral or political issues from a religious perspective,” since that’s exactly what it says. The only alternative is to admit the executive order doesn’t do the very thing Trump said it would do.
They would have to admit Trump was lying when he said earlier this year, “I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.” And that the White House’s Twitter account was wrong to say the executive order was all about “stopping the IRS from revoking a church’s or nonprofit’s tax-exempt status if it chooses to support a political cause.” And that Trump lied at the signing ceremony when he said, “this financial threat against the faith community is over… I will be signing an executive order to follow through on that pledge and to prevent the Johnson Amendment from interfering with your First Amendment rights.”
Dahlia Lithwick and Elliot Mincberg at Slate point out the hole Trump’s team is now in:
The [FFRF] suit includes the now-obligatory catalog of every tweet and statement Trump has ever made about the Johnson Amendment that would have made such changes unconstitutional had he enacted them. Should it be allowed to proceed, this new lawsuit will all but force Justice Department lawyers to stand before a judge and explain that the executive order, as signed, achieves none of those goals and in fact does little more than codify the status quo.
So which is it? Does the executive order do what Trump says it does, in which case it’s likely illegal? Or does it do nothing of consequence, in which case he’s been lying (purposefully or out of ignorance) to his Christian Right base?
As Lithwick and Mincberg put it, “Either answer offers troubling insight into the functioning of this new administration.”