Trump Order on Religious Freedom Is Less Than It Appears

It Also May Be Unconstitutional

President Trump demonstrated again today that alchemy, of the political variety at least, is among his hidden talents.

Basking in friendly applause from an assortment of religious leaders in the White House rose garden, the president issued an executive order that purports to promote and protect religious liberty but when scrutinized appears to be a simple exercise in political gamesmanship.

And there’s also a good chance it’s unconstitutional.

The Trump directive tells federal agencies to “respect and protect the freedom of persons and organizations to engage in religious and political speech.” It orders the Treasury Department to refrain from collecting taxes, imposing tax penalties or delaying or revoking the tax exemptions of churches that speak on “moral or political issues from a religious perspective.”

Never mind that politicking from the pulpit violates the Johnson Amendment, which warns churches and other religious organizations that they will forfeit their tax-exempt status if they endorse political candidates. Trump’s supporters on the religious right have long sought repeal of the amendment, so the president’s audience in the rose garden this morning applauded his order with relish.

Other verbiage in Trump’s order suggests it doesn’t mean much however. The Washington Post reports that since 2008, more than 2,000 mainly evangelical Christian clergy have deliberately violated the law to protest against it; only one has been audited by the IRS, and none punished. And the Trump order’s strong words about protecting religious speech are followed by this qualifier: they apply only “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.”

So boiled down, the order sends churchmen a message something like this: If you’ve been talking about politics in the pulpit and we haven’t already tried to take away your tax exemption, you can keep on talking about politics in the pulpit.

Then there’s the matter of the Constitution. Minutes after Trump signed today’s order, the American Civil Liberties Union announced plans to challenge it in court. ACLU Executive Director Anthony D. Romero called the order “a broadside to our country’s long-standing commitment to the separation of church and state.”

According to Cornell University’s Legal Information Institute, the First Amendment’s language on religious freedom bars the federal government from giving any religious organization preferential treatment over a non-religious group. Because churches hold the same kind of tax exemption enjoyed by secular charities, Trump’s order may be read as giving ministers a license that is not provided to charitable museums, schools, arts organizations and other tax-exempt charities.

I should note here that Common Cause has a charitable affiliate, the Common Cause Education Fund, so we’re among the groups that Trump’s order discriminates against. Of course, we’ve never endorsed a political candidate and we’re not about to start now.

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