A statement by the Freedom From Religion Foundation
After FFRF announced our lawsuit against Trump's May 4 executive order, there have been some questions about why FFRF sued when other groups like the ACLU decided not to, issuing a statement to that effect. Obviously, we cannot speak for the ACLU, which we greatly respect and are partnering with on several lawsuits.
The ACLU decided that it was not suing . . . yet. If you read their statement, the possibility of a lawsuit is still open. The ACLU, like most groups, FFRF included, was particularly worried about the "License to Discriminate" language in Trump's sweeping "respect religious liberty" draft first leaked in February. But little of that language was retained in Trump's final order, making it harder to sue over it "on its face."
FFRF's primary focus is on another aspect of the May 4 order, namely its language rolling back the Johnson Amendment. The Johnson Amendment — which bars all 501(c)(3) nonprofits, including FFRF and churches, from engaging in partisan politicking — is crucial to keeping state and church separate, and keeping even darker money out of politics.
FFRF has already sued the IRS on a nearly identical issue and won. We agreed to end our challenge once the IRS showed it had resumed investigating reports over politicking by churches. We were the only civil rights group to take such a challenge, despite widespread reports at the time that the IRS was failing to enforce the law even-handedly. We warned the IRS that we would refile our lawsuit if there was evidence of future lack of enforcement. We've spent recent time on Capitol Hill fighting bills to repeal the Johnson Amendment. We've distributed brochures, published a video explaining the importance of the protective rule, and written letters to those who publicly misunderstand the rule, such as Sen. Chuck Grassley.
We know the importance of the Johnson Amendment. We've been obeying and defending it for years. And as our lawsuit explains, Trump has made it clear that he and his administration view this order as undoing that law.
Not on our watch.
Legal experts are weighing in and noting, with interest, the import of our lawsuit. The Take Care Blog, an interesting legal blog taking its name from the clause of the Constitution which says that the president "shall take care that the laws be faithfully executed," a clause which FFRF's lawsuit argues that Trump violated, had an excellent write-up of our challenge.
University of Virginia Law Professor Richard Schragger writes, "There has been muted reaction to Trump's executive order. Many commentators on the right and the left have argued that it failed meaningfully to alter the status quo.
Nevertheless, the FFRF complaint is worth reading, as it makes two important points that have been mostly unappreciated.
"Both sophisticated and casual observers of American politics take the alignment between the Republican Party and the Religious Right as a given," Schragger continues. "But why should the Establishment Clause not apply to this kind of political deal, when there is ample evidence that it is occurring, that it favors certain religious groups, and that its purpose is to advance and reinforce an existing religious-political alliance?
"Though much-maligned by religious conservatives, the Supreme Court's Establishment Clause doctrine still requires that civil laws have a secular purpose, that the primary effect of those laws should be neither to advance nor inhibit religion, and that civil laws should not result in an 'excessive government entanglement' with religion."
Our favorite line in his article is the last one: "The FFRF complaint takes this legal doctrine seriously." Yes, we do.
And so we've sued the IRS once again to ensure Trump's pronouncements and his order do not lead to widespread violations of the Johnson Amendment.