Religious liberty was in the news earlier this month as the man who was elected to the highest political office in the country signed an executive order that purported to relax enforcement of the Johnson Amendment. The Johnson Amendment restricts non-profits from endorsing political candidates in order to keep their tax-exempt status. While this executive order does not go as far as a draft order that was leaked in February, this order and the rhetoric surrounding it is still problematic both politically and religiously.
The political problems with this order are easily relatable. The problem with this executive order is that the Johnson Amendment applies to all non-profits, not just churches. If the executive order is requesting that the IRS treat churches differently than other non-profits, there are two potential problems. First, there may be an equal protection problem because the amendment is not being applied equally to every entity covered under the law. Second, there is a potential establishment clause problem because the executive order sets entities of faith in a better position than secular organizations. This is the crux of the arguments that the Freedom from Religion Foundation made in the lawsuit it filed shortly after the executive order was signed. The other problem here is a problem that my former classmate Elie Mystal focused on in his analysis of the order. If the executive order gives the IRS discretion in the enforcement of the Johnson Amendment, it actually opens the door for something evangelical Christians complained about during Obama’s presidency—selective enforcement. Selective enforcement, of course, leads to an equal protection and establishment clause problem of a different kind. one between religious faiths as opposed to between the religious and the secular. Finally, the thing that bothers me most is that this order addresses a problem that does not exist. First of all, very few churches (literally one) has ever been penalized under the Johnson Amendment. Moreover, any chilling effect on speech is an effect the churches place on themselves. Churches do not have to file as non-profit organizations and do not have any particular right to a tax exemption. If churches want to endorse political candidates, then they should forego the tax exemption to do so. I am not sure what or where the problem is.
I think on those grounds alone the executive order could be overturned, but my greater concern is for the effect this will have on churches. Any weakening or repeal of the Johnson Amendment turns churches into dark money political action committees that incentivize political donations. Do you want to donate to a candidate and not have anyone know? Give the money to a church and earmark it for a candidate. Not only will no one know who you supported, but you can also claim that charitable gift as a deduction on your taxes. Churches would become the Cayman Islands of political donations. Furthermore, churches already have enough trouble without the added problem of endorsing political candidates. What message does it send when a church endorses Donald Trump? What does that say to the membership who do not support that candidate? I know that I would not attend a church that endorsed an open and unabashed racist, homophobic, xenophobic, misogynistic, narcissist. I would not allow one dollar of my gifts to the church to be spent in political donations to that candidate. And to be fair, I would be uncomfortable if my church endorsed a liberal candidate, even though I politically count myself a liberal, for much the same reasons. Churches are supposed to be above that fray as we attempt to lead people to citizenship in a kingdom that is not of this world. The gospel message is a message for every human being, not just for those who fit our secular political ideologies. It is a place where we should be able to put those disagreements aside and value each other and everyone else as children of God. We already have enough trouble doing that as it is without the added pressures of explicit political division and candidate endorsement.
When we attach our churches to political candidates, no matter the stripe, we pull Jesus and the gospel down to our level. We turn them into tools that fit our earthly agenda, instead of the opposite. On top of that, we heap pressure onto candidates that they do not deserve. Not only do they have to carry the mantle for their constituents and their political affiliates, but now they must also carry the mantle of God’s representative. The Christian church must always find the line between being in the world but not of the world. It is a delicate balance, one that is ruined by this blatant search for political influence and power.
For those who are wondering, in 2000 the decision of the IRS to revoke the tax-exempt status of the Church of Pierce Creek was upheld in court after it published full page ads in two newspapers opposing presidential candidate Bill Clinton.
Jason Hines is a former attorney with a doctorate in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He is also an assistant professor at Adventist University of Health Sciences. He blogs about religious liberty and other issues at www.TheHinesight.Blogspot.com.
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