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Why Is The Justice Department Telling Churches They Can’t Defend Themselves Against Censorship?


As legal cases go, Freedom From Religion Foundation v. Trump is slightly complex. As politics goes, the Department of Justice’s (DOJ) involvement makes it even more so.

Reporter John Gizzi alluded to this case in a question to Sarah Sanders at a White House press briefing last week. Gizzi asked if President Trump was aware of the “complaints” surrounding religious freedom issues. Sanders replied she wasn’t sure. Regardless, freedom of religious expression for religious leaders could be at stake in an important legal battle pitting three parties against one another.

When President Trump issued an executive order about the Johnson Amendment, limiting it from extending the Internal Revenue Service’s power to challenge churches’ tax exemption based on their teachings, the Freedom From Religion Foundation filed suit. It wants the IRS to enforce regulations to fine churches based on bureaucrats’ judgments of sermons.

There are three facets to this case: legal, political, and one blending both. At stake are religious expression and the separation of church and state.

The Aims and Consequences of the Johnson Amendment

First, the legal portion: Since 1954, many churches have operated in trepidation of the Johnson Amendment, a provision in the U.S. tax code that prohibits all 501(c)(3) non-profit organizations from endorsing or opposing political candidates. The IRS has interpreted the Johnson Amendment aggressively, threatening consequences if churches get “too political,” even though it’s unclear whether the law’s authors intended to target churches, instead of non-religious nonprofits, with its provisions.

The Federalist’s David Harsanyi has covered this particularly egregious amendment thoroughly. Sure, the IRS rule violates the First Amendment, but that hasn’t stopped organizations from pushing the IRS to enforce it more, or at all. That includes FFR, a devout atheist organization that has sued over this amendment before.

Enter President Trump, the political portion of this legal battle. In May, Trump issued an executive order stating that the IRS should not enforce its interpretation of the Johnson Amendment on churches. Their speech should not be censored out of fear of the government. To wit:

In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does 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.

In response to Trump’s Executive Order, FFRF filed a lawsuit in a Wisconsin district court demanding that the IRS enforce the pulpit speech restrictions. Essentially FFRF is asking the court to enforce regulations that would threaten churches’ tax-exempt status, involve the IRS in churches’ finances, and levy fines against both the churches and their individual leaders. FFRF has tried to enforce the Johnson Amendment in a similar way three years ago but retracted their suit after Becket, a religious liberty law firm, got involved.

Finally, the political angle as it relates to these lawsuits. Several religious leaders in Wisconsin were concerned if FFRF won this suit the government would begin to censor their worship services. So they, with the help of Becket, filed suit to intervene. Becket filed a motion asking the court to reject FFRF’s suit outright as a violation of the separation of church and state.

The Executive Branch Fights the Executive Branch?

This case gets even more interesting—and complicated—in the way DOJ responded to Becket’s intervention on behalf of the Wisconsin pastors. Again, the pastors wish to actively oppose a suit that, if it succeeds, could harm their religious expression. They are essentially wishing to join the case in support of the executive branch’s decision, and the Department of Justice’s job is to defend executive branch decisions in court.

Yet the same day the DOJ filed suit asking the court to reject FFRF’s claims, it told the court in a separation motion two key facts: 1) that President Trump’s May promise was meaningless and 2) the religious leaders Becket represented had no business intervening in this case. This means they argued if the court reached the motion to intervene, intervention should still be denied.

While the proposed intervenors’ desire to be heard in this litigation is understandable, and they offer a unique perspective that could be valuable to the Court, they do not meet the requirements for intervention, and it would be more appropriate for them to advance their arguments through participation as amici curiae. The proposed intervenors do not meet the requirements for intervention of right, because they do not have an interest in the outcome of the action that would meet the requirements of Rule 24(a)(2) (emphasis mine).

I asked Daniel Blomberg, legal counsel on this case at Becket, why he thought the DOJ would believe churches had no vested interest in legally protecting themselves by intervening in this lawsuit. “If we’re talking about the IRS getting involved in the internal affairs of churches, surely churches have an interest in protecting themselves against that,” he said. “The real people who are going to be harmed if FFRF wins its lawsuit are the churches, so of course they should be allowed to speak up for themselves.”

Blomberg added that what’s even more strange is that FFRF didn’t oppose the church leaders’ intervening in this case against Trump, even though they lost the last time Becket intervened, but for some reason Trump’s own Department of Justice did. “It looks weird when DOJ is opposing the churches and FFRF isn’t.”

Blomberg thinks people who care about religious expression need to start asking a few questions, namely, “‘Why is the DOJ saying Trump’s executive order is ‘meaningless’ and ‘How does it makes sense for DOJ to tell church leaders to stay out of this case?’”

Of course some would argue the Department of Justice is merely a band of civil servants, dedicated to doing work many of us never hear about much less can be grateful for, particularly during a tumultuous and unpredictable one-of-a-kind presidency. Others say this could be yet another exhibit of an administrative state rebellion against the president’s authority. Because this case is still ongoing, and the court has not responded to any of these motions filed last week, it’s difficult to conjecture.

The legal and political facets of this case are not only unique and complex but compelling, especially to those with a vested interest in the Constitution’s Free Exercise and Establishment clauses. While it’s typical for an atheist organization to attempt to pressure government to censor religious speech, it’s more eyebrow-raising when the Department of Justice, which ostensibly works to accomplish the president’s goals, tries to invalidate the president’s attempts to encourage religious liberty, and actively works against religious leaders fighting censorship.