My Thoughts on the Religious Freedom Executive Order

In 1954, President Lyndon B. Johnson was a senator from Texas. Frustrated by a political opponent who was receiving support from a tax-exempt organization and using this support to spread accusations that Johnson was a communist, the future President of the United States introduced an amendment to the federal tax code. This amendment focused on tax-exempt organizations, including charitable, scientific, literacy, educational and religious groups. It must be pointed out that the organization that was working with Johnson’s opponent was not a religious organization. Johnson’s amendment stated that any organization that wanted to maintain their tax-exempt status was required to refrain from participating in or intervening in “any political campaign on behalf of (or in opposition to) any candidate for public office.” The amendment faced no opposition and it became the law of the land. As a result, to this day tax-exempt organizations are forbidden to publicly endorse or denounce political candidates. They are also forbidden to raise funds for and make contributions to political candidates. They are not forbidden from engaging “in a limited amount of lobbying (including ballot measures) and” advocating “for or against issues that are in the political arena.”

Dating back to the birth of our nation and reflecting the First Amendment, the Establishment Clause and the desire to separate church and state, making religious institutions tax-exempt has been a longstanding practice in the United States. In 1970, the Supreme Court ruled in Walz v. Tax Commission of the City of New York that the tax-exempt status given to religious institutions helps protect the separation of church and state. This exemption, according to the Supreme Court, “creates only a minimal and remote involvement between church and state and far less than taxation of churches. [An exemption] restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.” In addition, the Court stated that tax-exempt status “has helped to guarantee the free exercise of all forms of religious belief.”

While President Johnson’s amendment was clearly designed to undermine a political rival, it has helped to keep politics and religion as separate as possible. Granted, many religious institutions cross the line, some going so far as to blatantly endorse or denounce political candidates. The line separating what clergy can and can’t say from the pulpit is often fuzzy. However, the IRS doesn’t strictly enforce the Johnson Amendment. Since 2008, only one of more than 2,000 clergy who have intentionally challenged the amendment has been audited. No members of the clergy have been punished for violating the amendment.

As a rabbi, I’ve embraced my ability to advocate “for or against issues that are in the political arena,” especially when it comes to Israel. While doing so, however, it’s often incredibly challenging not to say things that wind up endorsing or denouncing the positions of political leaders. This is just one of the reasons that I’ve tried to avoid getting political over the past several years – making some of you very happy and a few of you very frustrated.

Last week, President Trump issued an Executive Order focused on religious freedom. The Executive Order states that the government will not:

take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, 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.  As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions…; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.”

In a nutshell, President Trump’s Executive Order states that religious institutions shouldn’t be treated any differently than other tax-exempt organizations when it comes to their freedom of speech. They may speak about political issues, but they may not break the law: religious institutions, like all tax-exempt institutions, may still not participate in or intervene in a political campaign on behalf of (or in opposition to) a candidate for public office. While this Executive Order works to ensure the fair treatment of religious institutions, it does absolutely nothing to change the regulations of the Johnson Amendment. Churches, synagogues, mosques and other religious organizations are still limited when it comes to what they can and can’t say about American politics.

The Executive Order also states that the government “shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.” In a nutshell, this means that businesses may be exempt from certain regulations that are part of the Affordable Care Act if these regulations require a business to go against religious beliefs. Again, this Executive Order does nothing to change the law of the land. Back in 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that because of religious beliefs, a business may deny employees the coverage of contraception as regulated by the Affordable Care Act.

While this Executive Order has attracted a lot of attention, it changes nothing. Fortunately, the order didn’t go as far as some had predicted – it contains nothing that legalizes the discrimination of the LGBTQ community. This being said, the order does promote the idea that religious institutions are under attack. This is just not accurate.  Religious institutions have tremendous leeway to engage in the political process. I believe that many religious institutions have taken advantage of this leeway and have become too involved in this process, encouraging the overlap of church and state. In addition to breaking the law, this overlap threatens core American values. Further, it denies many the comfort, community and focus that religious institutions have the potential to provide. In our society that is so divided and where civil discourse is a lost art, many people are seeking a spiritual haven within the sanctuaries of their synagogues, churches and mosques. Unfortunately, instead of a haven, they find that these sanctuaries have become extensions of a particular political ideology and the preaching within these spaces does nothing to heal the partisan divide that we are struggling with today. These politically active religious institutions are fortunate that the IRS has not aggressively pursued the Johnson Amendment. Based upon this Executive Order, it’s highly unlikely that the government will begin to enforce the law of the land. However, if it does, religious institutions must remember that they have the right to say whatever they want to say so long as they give up the precious right not to pay taxes.

The Executive Order also suggests that religious freedom is in jeopardy. While there are certainly religious groups in America, including our own, that face challenges, religious freedom is alive and well. This is a freedom that has been protected by the Supreme Court – as demonstrated by Burwell v. Hobby Lobby – and some of the court cases involving the President’s Executive Order on immigration. Unfortunately, some insist upon using religious beliefs as a way to discriminate against, marginalize and dehumanize individuals and groups whose rights are protected by the laws of our country. To argue that our religious freedom is in jeopardy when the religious beliefs of some are used to deny the civil rights of others is to overlook the freedom guaranteed to us by the First Amendment of the Constitution and the Establishment Clause: “Congress shall make no law respecting an establishment of religion.” If the religion of one group of Americans is given the authority to deny the rights of another group of Americans, the very fiber of our great nation will begin to unravel.

In summary, this Executive Order does nothing to change the law governing tax-exempt religious institutions. It also doesn’t do anything that the judicial system hasn’t done to protect religious liberty. As a rabbi, I appreciate that the order puts a national spotlight on the fine line that separates church and state and how this fine line can limit what religious institutions should and shouldn’t be talking about. I also appreciate that the order highlights one of our many national challenges: to both protect the religious freedom and uphold the civil rights of every American. This being said, I’m troubled by the narrative that the order presents. While we still have much work to do to create a more perfect union, our Constitution, our laws, our courts, and most of our political leaders and religious institutions are doing a pretty good job at keeping religious freedom alive and well.