By Trey Bright; Staff Member (Vol. 16)
On February 2, 2017, President of the United States, Donald J. Trump, delivered a speech at the National Prayer Breakfast in Washington, D.C. in which he doubled down on the GOP platform’s commitment to expanding the First Amendment rights of houses of worship. President Trump assured the audience of religious leaders that he would make good on his campaign promise to “totally destroy” the Johnson amendment, a provision of the U.S. tax code, which allows “our representatives of faith to speak freely and without fear of retribution.”
What is the Johnson Amendment?
Following President Trump’s speech, The New York Times described the Johnson Amendment as:
[O]ne of the brightest lines in the legal separation between religion and politics. Under the provision, which was made in 1954, tax-exempt entities like churches and charitable organizations are unable to directly or indirectly participate in any political campaign on behalf of, or in opposition to, any candidate. Specifically, ministers are restricted from endorsing or opposing candidates from the pulpit. If they do, they risk losing their tax-exempt status.
Controversy and Questions of Constitutionality
Following President Trump’s remarks, talks of an executive order, proposed legislation, and the impacts that each could have began to swirl throughout Washington. Accompanying this dialogue was a mixed array of support, concern, and questions of constitutionality.
Proponents of the efforts to repeal the Johnson Amendment argue that it violates the First Amendment protections of free speech and free exercise afforded to houses of worship – though the courts have disagreed on this point for more than half a century. Meanwhile, opponents of the efforts to repeal fear that it could encourage the creation of sham nonprofits to funnel money into politics and corrupt the very purpose of churches.
Talks of the proposed repeal raised serious concerns over its impact on the separation of church and state doctrine; but concerns of this type of Establishment Clause violation are largely dependent upon the substance of the policy itself.
In Walz v. Tax Commission of the City of New York, the Supreme Court established that a tax exemption equally available to both secular and religious nonprofit organizations did not violate the Establishment Clause. Further, the Walz Court suggested that such an exemption strictly for religious organizations would be an impermissible religious preference in violation of the Constitution. Similarly, this sort of naked preference for religious groups was held to be a violation of the Establishment Clause in Texas Monthly, Inc. v. Bullock, where the Court struck down a Texas statute exempting only religious publications from state sales taxes.
Under this line of case law, it is clear that a repeal of the Johnson Amendment only as it pertains to restricting the political activities of religious organizations would be held unconstitutional. That being said, were the repeal to apply to nonprofits across the board, it would be constitutionally acceptable – proposing only a question of policy.
The Executive Order
Some thought a more clear answer as to how a repeal would be implemented would be addressed on May 4, 2017, as President Trump signed an executive order in the White House Rose Garden amidst a crowd of activists and religious leaders. As he signed, the president promised that the order would “prevent the Johnson Amendment from interfering with your First Amendment rights.” However, despite this promise and the aforementioned vow to “totally destroy” the Johnson Amendment, key questions remained unanswered.
Attorneys for the American Civil Liberties Union (ACLU) and the Human Rights Campaign expressed a plan to immediately challenge the executive order. The organizations feared that the order would undermine women’s health care in the name of religion and could enable religious discrimination. But upon release of the order, the need for such challenges came into question as activists from both ends of the spectrum suggested that the executive order did little to nothing of substance. In fact, the ACLU went as far as to say that the signing of the order was simply “an elaborate photo-op with no discernible policy outcome.”
The executive order vaguely reads: “to the extent permitted by law,” the Department of the Treasury is not to take adverse action against any individual or religious organization on the basis of speech about political issues where similar speech has, “consistent with law,” not ordinarily been treated as participation on behalf of or against a candidate in a political campaign. In other words, the executive order is essentially legalese for “carry on.”
Even conservative groups expressed their disappointment with the executive order, appreciating the symbolism and the optics but acknowledging that the vague language of the order leaves President Trump’s campaign promise unfulfilled.
What’s Next?
Of course, the lackluster executive order isn’t the end of the debate over the Johnson Amendment. President Trump, and others in the Republican leadership, have suggested that a Congressional act on the subject is forthcoming. In any case, if conservatives are to legitimately make good on their promise to repeal the Johnson Amendment, they clearly have more to do and must do so without imposing the sort of naked religious preference mentioned herein.
First Amendment Law Review 