Marty Lederman // 5/4/17 //
According to a background briefing by government aides last night, today’s Executive Order will not include any movement toward various religious exemptions to federal laws (such as anti-discrimination laws), with one prominent exception: there will be a broader religious exemption to the ACA’s required “preventive services” coverage, including contraceptive coverage, in employer health insurance plans. I hope to write about that expanded exemption if and when administration agencies, including HHS, announce further details.
If the one-pager that officials distributed last night is any indication, the only other substantive effect of the Executive Order will be to direct 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.” [UPDATED: As issued, the Executive Order does not go that far, or really do much of anything at all. The relevant provision states that "the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about 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 by the Department of the Treasury." In other words, it merely requires that the governement apply the Johnson Amendment to churches in the same way that it is applied to other 501(c)(3) organizations. And because the Johnson Amendment also requires the leaders of those nonreligious organizations not to engage in partisan political activity in their speech activities--as a condition of entitlement to 501(c)(3)'s tax benefits--this Executive Order does not even (at least not on its face) suggest that the IRS should not enforce the Johnson Amendment as to candidate-specific speech in churches, or from pulpits. As I note later in this post, the IRS does not ordinarily take steps against churches even in such cases; accordingly, the effect of this section of the E.O. appears to be . . . nothing at all.]
You might well think to yourself: Is there really a federal law that prohibits religious leaders from speaking about politics and candidates from the pulpit? And the answer would be: Of course not. Such a law would almost surely violate the First Amendment. And therefore Congress hasn’t enacted it.
Instead, the Johnson Amendment simply imposes a condition that all nonprofit organizations, churches and otherwise, must comply with in order to qualify for the very substantial benefits of “501(c)(3)” status. Such status is available to any nonprofit corporation that is “organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition ... or for the prevention of cruelty to children or animals.” The primary benefit that such organizations receive is not simply that their own income is tax-exempt—something that’s true for other nonprofit organizations, as well, including 501(c)(4)s—but that contributions to a 501(c)(3) organization are tax-deductible. Naturally, this tax deduction is a very substantial benefit to the organization itself, because it results in many more private donations.
In order to qualify for this very valuable tax-deduction benefit, the so-called Johnson Amendment provides that the nonprofit organization may not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” That’s true whether the organization is a church or a “literary,” “scientific,” “charitable” or “educational” organization—or, for that matter, an organization devoted to fostering national or international amateur sports competition or to preventing cruelty to children or animals. Contributions to any and all such organizations are tax-deductible only if the organization does not engage in “express” political advocacy--speaking for or against a particular candidate--or other partisan political activity. The church minister speaking from the pulpit is treated just the same as any other official of any other 501(c) nonprofit corporation. (Here’s a handy Congressional Research Service report on the Johnson Amendment’s application to churches.)
Notably, this does not mean that the preacher is “prohibited from speaking about politics.” Indeed, she may do so without any tax consequences at all as long as she does not actually urge her audience to take sides in a partisan political campaign: that’s why most of us have heard our fair share of sermons taking very strong views on policy disputes at the heart of political campaigns. Moreover, a church, like any other nonprofit, may even engage in express advocacy for or against a candidate, without any effect on the tax-exempt status of its own revenues, by establishing a separate, affiliated 501(c)(4) organization that could create a political action committee to do just that. The only major consequence of doing so is that contributions to the organization would then no longer be tax-deductible.
For all of these reasons, a panel of Republican-appointed judges of the U.S. Court of Appeals for the D.C. Circuit correctly held that the Johnson Amendment does not substantially burden the religious activity of a religious organization—and therefore does not raise any serious Free Exercise or RFRA questions—even if the organization believes that partisan politicking is a significant component of its religious mission.
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Not only doesn’t the Johnson Amendment treat churches worse than other 501(c)(3)s—as it happens, the IRS has long treated the political speech of churches more favorably than that of nonreligious 501(c)(3)s. Since 2008, the Alliance Defending Freedom has organized what it calls “Pulpit Freedom Sunday,” an exercise of mass civil disobedience in which hundreds or thousands of clergy nationwide all deliberately violate the law, on a designated day, by engaging in partisan political activity from the pulpit (e.g, urging their congregations to vote for or against certain candidates), in contravention of the condition of their churches’ preferred tax status. The point of this exercise is to prompt the IRS to move to withdraw some churches’ 501(c)(3) status, in order to create some sort of national scandal. The IRS, however, has not taken the bait—as Emma Green reports in this excellent article for The Atlantic, the agency has declined even to audit most, or all, of the churches in question, let alone to withdraw any church’s 501(c)(3) status.
President Trump’s Executive Order purports to direct the IRS to be more lenient than that (if such a thing is even possible)—to exercise “maximum enforcement discretion to alleviate the burden of the Johnson Amendment” on churches.
It might be politically shrewd for the IRS to ignore the churches’ law-breaking. Even so, if the agency affords preferential treatment to churches that deliberately flout the law—something that today’s E.O. will, if anything, only exacerbate—it almost certainly would be unconstitutional. I’ll leave it to Zach Price and others to discuss whether the IRS is simply violating its statutory mandate (and whether the E.O. thus violates the President’s duty to take care the law is faithfully executed). Even if such disparate treatment is consistent with the enforcement discretion Congress has delegated to the IRS, however, giving churches a preference vis-à-vis other 501(c)(3)’s likely violates the Establishment Clause—not least because it does not alleviate a significant or “exceptional” burden on churches’ religious exercise—and such a speaker-based preference to engage in political advocacy is an even clearer violation of the Free Speech Clause, see, e.g., Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 652-653 (1981); cf. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 25 (1989) (White, J., concurring in the judgment). (By contrast, current legislative proposals to amend or repeal the Johnson Amendment would apply to all 501(c)(3)s, religious or otherwise, and thus would not raise any serious constitutional questions, although they may be deeply unwise as a matter of policy (which is why numerous religious organizations oppose such initiatives).