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Removing The Chill – Religious Liberty Executive Order

May 2017
Election Law News

On May 4, 2017, President Trump issued an Executive Order Promoting Free Speech and Religious Liberty.

Due in large part to the President’s campaign promise to “totally destroy” the Johnson Amendment and a purported early draft of the Executive Order obtained and published by The Nation in February, all sides of the debate over increased political activity by religious entities and charities were geared up for a lengthy legal battle. What actually happened, as is often the case, did not live up to the hype.

Since enactment, the Johnson Amendment has effectively prohibited Section 501(c)(3) entities (charities, churches, and educational organizations) from engaging in political activity without losing their tax exemption. That being said, there is widespread agreement that the IRS has failed to enforce the spirit of the law in all but the most extreme cases. So, what was the problem?

What rankled politically active religious leaders the most was that the threat of losing tax-exemption often kept religious leaders and organizations from speaking publicly about political issues and candidates, even though the issues supported by a particular candidate carried significant religious importance. In effect, the Johnson Amendment, while almost never enforced, chilled political speech by religious leaders.

The new Executive Order specifically directs the Secretary of the Treasury to refrain from “any adverse action” against 501(c) organizations that speak on “moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office.” Assuming the current IRS policy of non-enforcement against churches that have blatantly endorsed candidates from the pulpit (i.e., not ordinarily treating it as prohibited political activity) is consistent with law – the IRS could hardly argue otherwise – the Executive Order could give religious groups real confidence to speak out on political issues and candidates without fear of adverse IRS action.

We should note that this new confidence builder is a far cry from an actual repeal of the Johnson Amendment (which would take congressional action). Further, the Executive Order will be susceptible to any court action ruling that the IRS’s previous policy of non-enforcement is, in fact, not consistent with law. Will attorneys across the country begin advising religious groups that most political activity is now fair game? I doubt that seriously; however, those religious organizations already pining to get involved in the political process will likely be a good bit more aggressive than they were.

One additional thing to note is the complete lack of legal challenges to the Executive Order filed so far. This is another indication that it did little more than enshrine the status quo. And with many Evangelicals interested in issues trending to the right of the political spectrum, historically African-American churches interested in issues trending to the left of the political spectrum, and Catholics on both sides, we likely will not see a groundswell of complaint from either side.