The Johnson Amendment Is Still In Effect, The Trump Administration Admits

On May 4, President Donald Trump signed a “religious liberty” executive order that, he boasted, would free up houses of worship to endorse political candidates.

During his campaign and after the election, Trump continued to promise to “totally destroy” the Johnson Amendment, a six-decades old provision in the federal tax code that makes it clear that tax-exempt nonprofits, including houses of worship, may not intervene in elections by endorsing or opposing candidates. During this year’s National Day of Prayer event, which was staged on the White House lawn, Trump signed this executive order, claiming to “follow through on that pledge.”

It would take an act of Congress to repeal the Johnson Amendment; it’s not something a president can do through an executive order. Nevertheless, Trump led people to believe he had somehow transformed the law. In a move labeled “mostly false” by Politifact, he even told Christian Broadcasting Network’s founder Pat Robertson, “I've gotten rid of the Johnson Amendment.”

Last week, religious leaders and church-state separation advocates delivered letters to members of Congress, advising them not to tamper with the Johnson Amendment

It was immediately clear to those of us at Americans United – and to other groups ranging from the ACLU to Alliance Defending Freedom – that Trump’s claims about his executive order didn’t match reality.

Several months have now passed, and the Trump administration just basically admitted that the executive order didn’t really do anything. After the order was signed, the Freedom From Religion Foundation challenged it in court. The U.S. Department of Justice filed a motion this week to get that suit dismissed, and one of its arguments is that Trump’s order hasn’t changed the current law.

“The Order does not exempt religious organization from the restrictions on political campaign activity applicable to all tax-exempt organizations,” attorneys with the Justice Department wrote in a court filing this week. “Rather, the Order directs the Government not to take adverse action against religious organizations that it would not take against other organizations in the enforcement of these restrictions.”

The department is admitting that the Internal Revenue Service must treat houses of worship and secular nonprofits the same when enforcing the Johnson Amendment. Well, we knew that already. Trump’s order just restated the obvious.

The conservative legal group the Becket Fund also filed a brief in the case this week. They are seeking to intervene in FFRF’s lawsuit, falsely stating that the Johnson Amendment “explicitly forbid pastors, imams, and rabbis to speak to their congregations important issues where politics and faith overlap.” They further misstate the facts when they claim: “the IRS has ordered churches to censor their sermons on certain issues, and threatened massive punishment if churches don’t toe the line.”

That is not what the Johnson Amendment does – houses of worship can and do speak to political and social issues. They just can’t endorse or oppose political candidates. And Becket surely knows that.

In fact, more than 4,000 faith leaders just signed a letter to Congress in support of the Johnson Amendment, explaining that current law “strikes the right balance: houses of worship that enjoy favored tax-exempt status may engage in advocacy to address moral and political issues, but they cannot tell people who to vote for or against.” 

Members of Congress also know that the executive order didn’t really change the law. That is why some members are taking their own steps to weaken the law. One proposal, which severely weakens the ability of the IRS to enforce the law, has already cleared a House committee and may appear on the floor of the full House in early September.

You can help push back on these Congressional efforts by telling your Member of Congress to protect the Johnson Amendment and reject any efforts to weaken or repeal it.