//  5/5/17  //  Commentary

Yesterday, the Freedom from Religion Foundation (FFRF) filed a lawsuit against Donald Trump’s most recent Executive Order (EO), “Promoting Free Speech and Religious Liberty.”  FFRF alleges in part that the order violates the Establishment Clause by favoring religion over non-religion—specifically in regards to the so-called Johnson Amendment, which prohibits electioneering by 501(c)(3) organizations.  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.

First, the complaint highlights the problem of selective enforcement.  The entire purpose of the EO, as the FFRF complaint illustrates with numerous quotes by the President and his staff, is to allow churches and church leaders (and primarily Christian churches and church leaders) to engage in political speech and endorsements with little fear that the IRS will enforce the existing ban on non-profit electioneering.  Of course, the IRS barely enforces that ban in any event, except in extreme cases.  No one is currently preventing church leaders from making endorsements from the pulpit, despite the existence of the Johnson Amendment. 

But FFRF is correct that this virtual non-enforcement of the Johnson Amendment—now seemingly codified in Trump’s EO—appears to favor religious organizations and church leaders.  To be sure, the language is a bit vague.  (The important sentence is almost a paragraph long.)  But on its face the EO could be read not to apply to secular 501(c)(3)s like FFRF, as it identifies for special protection individuals or organizations that speak or have spoken “about moral or political issues from a religious perspective.”  And so FFRF asserts that churches and religious organizations “will be able to blatantly and deliberately flaunt the electioneering restrictions of 501(c)(3) . . . unlike secular non-profits, including FFRF.”

Favoring religious speakers over non-religious speakers when deciding how to enforce the law looks very much like an equal protection or free speech problem, not to mention an Establishment Clause violation under cases like Texas Monthly v. Bullock.

The specific problem of religious favoritism masks a larger concern.  And this brings me to a second important issue highlighted by the FFRF complaint.  Whether or not the IRS selectively enforces electioneering restrictions against non-profits, the obvious political alliance that produced the EO and its stated intention to advance the aims of religious organizations should be troubling.  As FFRF’s complaint describes in great detail, Trump continually spoke of “get[ting] rid” of the Johnson Amendment because that is what Christians (and especially conservative evangelicals) wanted him to do.

That the President and his staff, many religious leaders and organizations, and most commentators take for granted that the Establishment Clause tolerates religious-political alliances of this sort should give us pause.  

One of the central reasons for the ban on church electioneering is that a politics that places the salvation of citizens at issue or that involves claims by partisans that “God is on our side” demonizes political opponents not just as wrong but as godless—and thus raises the stakes for supporters on both sides.  Religious factionalism coupled with political power can lead directly to religious persecution.  For those concerned about religiously-inspired political divisiveness, limiting religious groups’ ability and incentive to com­pete for political supremacy and control of the apparatus of civil government seems like a wise strategy.

The Supreme Court has sought to draw lines between civil and religious power—to prevent too close a relationship between civil and religious authority or to bar political “takeovers” of civil government by religious groups.  For example, in Larkin v. Grendel’s Den, the Court struck down a Massachusetts law that allowed churches to veto liquor license applications from businesses operating within 500 feet of the church.  Similarly, in Board of Education v. Grumet, the Court struck down a New York law that created a school district that was coterminous with a religious sect’s territorial boundaries. 

Aside from restricting these formal grants of authority, however, the courts have had difficulty policing the line between religion and politics—and so has the IRS, which is the reason that the electioneering ban is already under-enforced.  The existing law of the Establishment Clause does not directly prevent religious organizations and activists from lobbying for certain laws on the basis that they are required by God.  And it does not readily prevent legislators from voting for such legislation because of their own individual commit­ments to codifying God’s laws as they perceive them.  Trump can state with impunity (and has done so, according to the FFRF complaint) that his purpose in adopting the EO is to advance conservative Christianity, both as a religion and as a political force.  

Both sophisticated and casual observers of American politics take the alignment between the Republican Party and the religious right as a given.  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.  The FFRF complaint takes this legal doctrine seriously. 

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George Washington University Law School

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