The Freedom From Religion Foundation has filed an amended complaint to buttress the Johnson Amendment even as the House takes measures to weaken it.
The Johnson Amendment even-handedly bars any 501(c)(3) organization, including churches, from using tax-deductible donations for political, partisan purposes. The House of Representatives last week quietly passed a budget provision to defund enforcement of the amendment as it pertains to churches.
FFRF filed its original lawsuit the day of President Trump's May 4 executive order on religious liberty, which Trump has repeatedly claims "stops" the Johnson Amendment as it applies to churches. Trump's executive order directs the IRS "to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit."
In late August, the Department of Justice, seeking to dismiss FFRF's legal challenge, contradicted Trump's contention that he's overturned the Johnson Amendment. The department filed a document saying, "The order does not exempt religious organizations from the restrictions on political campaign activity applicable to all tax-exempt organizations."
The Justice Department averred that FFRF "misunderstands the purpose and the effect" of the order. "Clearly, it's Trump who misunderstands his authority," responds Annie Laurie Gaylor, FFRF co-president. FFRF concurs that Trump doesn't have the authority to selectively undermine enforcement of a duly enacted U.S. law or to engage in invidious discrimination against secular tax-exempt groups.
Nevertheless, as FFRF's amended brief documents, Trump continues to send "a loud message to the religious community" that it may openly violate the Johnson Amendment. Trump told the Faith and Freedom Coalition on June 8 that he had delivered on his campaign message to stop the Johnson Amendment: "This executive order directs the IRS not to unfairly target churches and religious organizations for political speech."
Trump has made similar statements elsewhere.
"I've gotten rid of the Johnson Amendment," Trump told Christian Broadcasting Network founder Pat Robertson on July 12. "You know, you couldn't speak politically before; now you can." He added that it is "going to be a great thing for Christianity, believe me."
News story after news story declared that Trump was allowing or making it easier for churches to engage in political activity. Reuters, for instance, ran a headline saying, "Trump order frees tax-exempt churches to be more politically active."
His executive order and statements about it create great harm in perception, FFRF contends. Nan Aron, who heads the Alliance for Justice, comprised of more than 100 diverse nonprofits, expressed concern that the order "sends threatening signals about how certain religious speech and religious institutions might be allowed to skirt laws imposed on others." The intended message is that the IRS will no longer enforce the Johnson Amendment against Christians, particularly evangelicals, who are being encouraged to electioneer, to the detriment of secular nonprofit groups held to a more rigorous standard of enforcement.
FFRF warns, "The president's speech and actions convey a message of pure religious endorsement, which indicates that religious officials are political insiders, while secular groups and individuals are political outsiders."
The complaint notes that when Trump hosted a six-hour meeting with evangelical leaders this summer — which included the laying of hands on the president in the Oval Office — religious leaders made policy suggestions. One such recommendation, by Tony Perkins, president of the Family Research Council, was to ban transgender people from serving in the military. Within days, Trump announced his transgender military ban via tweet and without first consulting military leaders.
As a result of the executive order, churches and religious organizations will be encouraged to blatantly and deliberately flout electioneering restrictions, including during the upcoming 2018 elections. Trump's actions, including the issuance of the executive order, "have the effect of further chilling IRS enforcement of the Johnson Amendment, which religious officials believe they can disregard without consequences."
This will have discriminatory outcome.
"We face real and credible threat of enforcement of the Johnson Amendment as a secular nonprofit, while churches do not, which has a chilling effect on our speech," maintains FFRF Co-President Dan Barker. "This executive order is intended to favor Christianity as the majority religion, and to favor evangelical Christians as a voting bloc Trump depends on."
Eighty percent of Americans favor retaining the Johnson Amendment restrictions against church politicking. FFRF has issued an action alert asking citizens to contact their senators to remove from the anti-Johnson Amendment funding provision from the budget.
The Freedom From Religion Foundation, a national nonprofit organization based in Madison, Wis., is the largest U.S. association of freethinkers, representing over 29,000 atheists, agnostics, and other freethinking American citizens.