Politics from the Pulpi
The Questionable Constitutionality of Executive Order 13798
By Melina Monlux, Ballard High School – June, 2017
During the Bush – Gore presidential campaign of 2000, renowned religious right evangelist, Rev. Jerry Falwell, told worshippers at the Genoa Baptist Church in Ohio to “vote for the Bush of your choice” and “We simply have to beat (Al) Gore” (Emery).
Rev. Falwell delivered this political message in open defiance of section 501(c) (3) of the Internal Revenue Code, known as the “Johnson Amendment” which provides that any tax exempt 501(c) (3) organization cannot participate in politics, lest they should lose their tax exempt status. Rev. Falwell clearly violated that provision, and yet neither he nor his church were penalized. Very few churches have suffered any consequence. Only, it seems, those as found by the Court in Branch Ministries vs. Rossotti (1999) to have “brazenly” flouted the law in writing. Branch Ministries did that by publishing an advertisement in the Washington Times and USA Today seeking contributions and claiming that “Bill Clinton is promoting policies that are in rebellion to God’s Laws” and concluding with the question: “How then can we vote for Bill Clinton?” The court in that case upheld the IRS’ revocation of Branch Ministries’ tax-exempt status (Branch).
Regardless of its history of weak enforcement, many churches are insistent on their desire to have the amendment overturned. But, it is a statute adopted by Congress and only Congress can repeal it. So Pres. Trump, to show his support for religious liberty, has attempted, through an executive order, to further weaken its impact on churches. Executive Order 13798 (2017), states that “the Secretary of the Treasury shall…not take any adverse action against any…religious organization on the basis that such organization speaks or has spoken about moral or political issues.” So the President, who said on the campaign trail that if we don’t enforce our laws we don’t have a country and who has taken an oath to faithfully execute the laws, has issued an executive order directing that the laws not be enforced.
Granting religious organizations specifically the right to participate in political activity while retaining their tax exempt status is both a violation of the Establishment and Equal Protection Clauses. It is thus not only essential that the Johnson Amendment remain in place and Trump’s order be discounted, but that the amendment become readily enforced by the IRS.
The Constitution supports this through the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth. The order violates the Establishment Clause because, as the courts have explained, granting a tax exemption amounts to a government subsidy. So giving tax exemptions to churches that engage in political activity is nothing short of the government helping to pay for the political activism of those churches. It is essentially making a law “respecting an establishment of religion.” Those religionists who urge repeal are essentially seeking a result that violates the Equal Protection Clause. That is so because, if religious organizations can engage in politics while other nonreligious organizations can’t without losing their tax exempt status, they are not being treated equally.
Giving unfettered opportunities to religious organizations to politicize likewise violates the third criteria of the Supreme Court’s Lemon Test established in Lemon v. Kurtzman (1971), as it “foster(s) excessive entanglement between government and religion,” through the favoring of religious groups above others, the allowance of politics to interfere with worship and vice versa, and the pathways it opens for dark money.
“Using charitable causes as shell companies to evade campaign finance transparency and contribution limits would increase the flow of dark money in politics,” (Wyden). Such a sinister result is quite likely. All contributions made to an organization qualifying under 501(c)(3) are tax deductible to the contributor. This is a huge benefit to such tax exempt organizations — much more beneficial than the income tax exemption itself because most charitable organizations don’t make a profit, they spend everything they get, and thus would not be taxed anyway because they have no taxable income. Should this be permissible, scads of money could flow through 501(c)(3)’s to support candidates, without regard to any of the rules regulating campaign contributions, political spending or any requirements for reporting contributions or spending.
There are many in the religious community who are actually in support of the Johnson Amendment. A National Association of Evangelicals poll found in February that “89 percent of evangelical leaders said that they do not think pastors should endorse politicians from the pulpit,” (Bailey, Wagner). Many of these individuals have even endorsed the Johnson Amendment, holding that it “protects what is supposed to be a spiritual haven from the pernicious intrusion of politics,” (Bailey, Wagner).
Trump’s executive order amounts to a violation of the Equal Protection Clause. Since the language essentially instructs the treasury not to enforce the Johnson Amendment for only religious groups, (which is about the same as repeal for all practical purposes) it can hardly be seen as granting all 501(c)(3) groups “equal protection of the laws.” And, as we have seen, in practice it supports the establishment of religion.
Trump’s order is not only unconstitutional, it is in violation of Supreme Court precedent as well. In Regan v Taxation With Representation of Washington (1983), the Supreme Court ruled unanimously that the “…revocation of a non-profit’s tax exempt status because they participated in substantial lobbying” neither violates the organization’s First or Fourteenth Amendment rights. The constitutional questions of this case, and similarly, of the Johnson Amendment as a whole, are whether or not the IRS violates the First Amendment and the Equal Protection component of the Fourteenth Amendment by “denying 501(c)(3) tax-deduction privileges to non-profit groups that participate in [politics]” (Regan). In the opinion written by Justice Rehnquist, the court reasoned that “…a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” Given that religious organizations fall under the exact same classification as taxation with representation (TWR) the precedent applies quite obviously. Although churches may feel that their First Amendment rights are being infringed upon, the court has already ruled that they are, in fact, not.
In this case, the Court’s decision was constitutionally sound. It is true that there is nothing in the Constitution that states the government must pay for one’s ability to exercise their rights, or that citizens must subsidize messages they may not agree with. Rehnquist writes that, “It is not irrational for Congress to decide that tax-exempt charities such as TWR should not further benefit at the expense of taxpayers at large.” Since the Constitution grants Congress the power to tax, it is likewise very difficult to argue that their implementation of that right on any organization is unconstitutional. The tax exempt status of 501(c)(3) groups is a privilege granted by Congress, not a right stated in the Constitution. Should these groups act against the provisions Congress set out for them to achieve that privilege, it is only right that it subsequently be revoked.
Still, there are some who believe that Trump’s order was simply reconciling the illegality of the Johnson Amendment. The ADF is one such organization, and has created the pulpit initiative urging action against the amendment. In the initiative, the ADF states that the Johnson amendment is a violation of the Establishment Clause, Free Speech and Free Exercise Clause. The organization also relies heavily on the Religious Freedom Restoration Act (RFRA). In many ways, this is the more convincing argument. The RFRA works to restore protections to religious liberty that were lost through the decision of Employment Division v. Smith (1990), stating that a law is unconstitutional if it places a substantial burden on a person’s ability to exercise their religion, if the government does not have a compelling reason for that burden or, if the government could not have found a less restrictive means by which to implement the law. ADF reasons that the Johnson Amendment violates the RFRA and the Establishment Clause by “substantially burdening a church’s exercise of religion” through placing restrictions on what ministers may preach about during their sermon. If a preacher believes that advocating for a particular political candidate is a key part of promoting the word of God, they cannot do so without repercussions. However, a preacher may still advocate for the morals and values which they are in support of, which may be in line with a particular candidate. Michael C. Dorf of Findlaw writes that “ A minister may preach that abortion is sinful or that the death penalty is murder, but he may not preach that congregants should vote for Candidate So-and-So because she will outlaw abortion or abolish the death penalty.” The restriction is so minute, it can hardly be seen as a “substantial burden.” Furthermore, the burden in question here is the requirement that the organization pay taxes, which, as previously described, is in no way a burden; it is simply a revocation of a privilege.
The most effective route to defeat Trump’s executive order would be to challenge its constitutionality, in a similar fashion to the immigration order he signed earlier this year. The court rulings on that order were very effective in stopping its implementation. With respect to the Johnson Amendment, a more effective route may be to lobby Congress. While Congress itself does not enforce this law, they have oversight over the IRS, which does. Another way to exert pressure on Congress is through interest groups. A particularly effective voice in starting a more grassroots movement to both challenge Trump’s order and advocate for the enforcement of the amendment would be churches or religious groups that are in support of it, such as the National Council of Churches, Islamic Society of North America, Association of Welcoming and Affirming Baptists, or any coalition of those and other such groups. This would be particularly effective because the opponents of the amendment argue that it burdens religious liberty and infringes on their First Amendment rights. To hear a religious coalition state that it does no such thing, and is actually something they wish to have enforced, is far more convincing than a third party advocate. The best hope for supporters of the Johnson Amendment, however, is to work for a more favorable Congress in the next election and then go on the offensive.
Trump’s efforts and those of the zealots of the religious right cannot be seen as helpful to the common good when it is so divisive and is supported only by a narrow spectrum of the religious community. It does so at the cost of the common good in polluting our electoral process. The dangers of such free reign on political speech in a tax-exempt environment are too great to be ignored in the name of individual religious liberty. If we ever are to truly live in a nation with separation of church and state, we must discontinue religious favoritism even in the face of its wrongdoings. We can start by making them pay taxes and eliminating deductibility of contributions to churches that are turned in to campaign contributions.
Branch Ministries v. Rossotti 40 F. Supp.2d 15 (DDC Cir.) 1999. p.17. District Court of District Columbia. 1999. TheLaw.net. Web. 05 June 2017
Dorf, Michael C. “Why the Constitution Neither Protects Nor Forbids Tax Subsidies for Politicking from the Pulpit, And Why Both Liberals and Conservatives May Be on the Wrong Side of This Issue.” Findlaw. Thomson Reuters, 06 Oct. 2008. Web. 05 June 2017 <http://supreme.findlaw.com/legal-commentary/why-the-constitution-neither-protects-nor-forbids-tax-subsidies-for-politicking-from-the-pulpit-and-why-both-liberals-and-conservatives-may-be-on-the-wrong-side-of-this-issue.html>
Emery, C. Eugene. “LBJ and the Ban on Political Activity by Religious Groups.” Politifact. N.p., 22 July 2016. Web. 05 June 2017. <http://www.politifact.com/truth-o-meter/statements/2016/jul/22/donald-trump/donald-trump-correct-lyndon-johnson-passed-legisla/>.
“Regan v. Taxation With Representation of Washington.” Oyez, https://www.oyez.org/cases/1982/81-2338. Accessed 11 Jun. 2017.
Regan v. Taxation With Representation of Washington, 461 US 540. US Supreme Court. 1983. “FindLaw’s United States Supreme Court Case and Opinions.” Findlaw. N.p., 2017. Web. 05 June 2017. <http://caselaw.findlaw.com/us-supreme-court/461/540.html>.
Wagner, John, and Sarah Pulliam Bailey. “Trump Signs Order Seeking to Allow Churches to Engage in More Political Activity.” The Washington Post. WP Company, 04 May 2017. Web. 5 June 2017.<https://www.washingtonpost.com/politics/trump-signs-order-aimed-at-allowing-churches-to-engage-in-more-political-activity/2017/05/04/024ed7c2-30d3-11e7-9534-00e4656c22aa_story.html?utm_term=.dbf05d94c95e>.
Wyden, Ron. “Sen. Wyden Responds to Johnson Amendment.” Sen. Wyden Responds to Johnson Amendment | NAO. NAO, 03 May 2017. Web. 11 June 2017. <http://nonprofitoregon.org/news/sen-wyden-responds-johnson-amendment>.