A Legal Challenge to Trump’s “Religious Liberty” Executive Order
UVA Law Faculty Affiliations
Yesterday, the Freedom from Religion Foundation (FFRF) filed a lawsuit against Donald Trump’s most recent Executive Order (EO), “Promoting Free Speech and Religious Liberty.” FFRF alleges in part that the order violates the Establishment Clause by favoring religion over non-religion—specifically in regards to the so-called Johnson Amendment, which prohibits electioneering by 501(c)(3) organizations. There has been muted reaction to Trump’s executive order. Many commentators on the right and the left have argued that it failed meaningfully to alter the status quo. Nevertheless, the FFRF complaint is worth reading, as it makes two important points that have been mostly unappreciated.
First, the complaint highlights the problem of selective enforcement. The entire purpose of the EO, as the FFRF complaint illustrates with numerous quotes by the President and his staff, is to allow churches and church leaders (and primarily Christian churches and church leaders) to engage in political speech and endorsements with little fear that the IRS will enforce the existing ban on non-profit electioneering. Of course, the IRS barely enforces that ban in any event, except in extreme cases. No one is currently preventing church leaders from making endorsements from the pulpit, despite the existence of the Johnson Amendment.