RELIGIOUS LIBERTY, OR THREAT TO RELIGIOUS LIBERTY?

Throughout his presidency, Donald Trump has repeatedly made remarks the he plans to destroy the Johnson Amendment. Last year, President Trump marked his first National Prayer Day by signing an executive order weakening the amendment designed to prevent all non-profit organizations from endorsing political campaigns. The executive order requested the IRS use maximum discretion when examining if preachers were being too political on the pulpit. The Johnson amendment was passed in 1954 and it prevents all 501(c)(3) non-profit organizations from using their funds to oppose or endorse political candidates or organizations. 501(c)(3) organizations have a special tax status in that donors can write off their donations for a tax deduction. The amendment was passed in order to prevent tax-payer money from indirectly benefiting candidates, protecting the integrity of all non-profits, and preventing non-profits being used as organizations to funnel dark money into politics.
The amendment does not prevent clergy from addressing politics issues on the pulpit. It also does not prevent clergy from using an occasional sermon to point out moral and religious issues with certain candidates, however they cannot use the pulpit to consistently endorse political parties or candidates. Under the current law, church resources cannot be directly funneled into political activities. Furthermore, religious leaders are free to use their personal time and social status to endorse or oppose political candidates as they see fit. In a sense, the tax code creates a total prohibition on the interference of churches and other non-profits in our election system. With the current total prohibition, the IRS rarely has to monitor religious organizations for electioneering. If a permissive standard is created, then their is a potential the IRS will be forced to entangle itself in religious affairs to ensure their practices are abiding to the code.

In recent years, the Johnson amendment has come under attack from religious organizations. Opponents of the amendment claim it interferes with a religious-organizations abilities to freely act on its beliefs. They claim the amendment is a clear violation of the free-practice clause. They want to ensure donations to religious organizations can still be tax deductible, while giving religious groups the ability to fund campaigns and take more active roles in elections. President Trump is not the only political leader attempting to change this law. Last year, the Free Speech and Fairness Act was introduced in the house and senate by three congressional republicans, including the majority whip Steve Scalise. More recently, the house passed an amendment in the new tax bill which would have repealed the Johnson Amendment. A recent analysis by the nonpartisan Join Committee on Taxation revealed repealing the amendment would allow for several billion dollars in nontransparent, anonymous political campaign spending to be redirected through 501(c)(3) organizations.

This talk of repealing the Johnson amendment is dangerous for our democracy. Seventy-one percent of Americans believe the separation of religious organizations from political campaigns is essential for maintaining religious rights in the country. After President Trump signed his EO, over 1,300 faith leaders signed an open letter opposing his actions. They recognized the threat these actions have towards the rich religious diversity of the US, and the divisive impact of introducing politics into our houses of worship.

I believe the Johnson amendment is essential for two reasons. First, the manner in which congress has attempted to change the law would only benefit religious institutions. This is not facially neutral, and would create a governmental preference for religion which would violate the establishment clause. In its current state, the law is facially neutral and has been applied in a neutral and sparingly fashion. Any changes could change the neutral status of the law. Second, and most importantly, the amendment prevents entanglement of any kind between the Church and the state. The tax exempt status of churches ensure the government has no reason to interfere with religious organizations in order to extract more tax dollars. The requirement of political neutrality ensures the religious organizations do not use this tax exempt status to establish their religious views in law. Changing the law could require the IRS to reevaluate an organizations status; this would create excessive surveillance and entanglement between church and state. Moreover, the law prevents religious organizations from entangling themselves in state policy in a direct extent. If churches could call in political favors because of their funding, the rule of secular law would shift towards the rule of religious law. As Justice Burger stated in Lemon V. Kurtzman, "A certain momentum develops in constitutional theory and it can be a 'downhill thrust' easily set in motion but difficult to retard or stop." If religious organizations were allowed to directly interfere in political elections monetarily, the creep of religious interference in state affairs would be hard to stop and would be a danger to the separation of church and state.