On May 4, 2017, President Trump passed a historic executive order granting religious nonprofits the freedom to engage in political speech without fearing federal prosecution.
This portion of the order largely flew under the radar and drew little media attention. But its implications are massive: The president has ordered the federal government not to prosecute any religious organization that engages in political speech or advocacy.
Titled "Presidential Executive Order Promoting Free Speech and Religious Liberty," the key segment is section 2:
[T]he 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 other words, faith-based nonprofits have the freedom to speak out publicly on political issues without fearing penalties, including loss of their tax-exempt status.
What are the implications for Catholics? According to Trey Trainor, chairman of the Federal Election Commission, Catholic bishops, priests, leaders and non-profits can freely speak out on moral and political issues without fear of repercussions from the federal government.
"Especially with this executive order that President Trump signed, the churches can absolutely engage in that activity now," said Trainor. He clarified that bishops should not be using the Johnson Amendment to stay silent on candidates, or to censor their priests.
"The bishops are using their nonprofit status as a shield to hide behind from having to make a decision about who to support," he noted. "They say we should have an informed conscience when we go to vote, but they never really take that next step and say, 'Here's who meets that criteria.'"
"If you look at it from a purely legal perspective, the priest to bishop is still an employee-employer-type relationship, and that's the employer telling the employee what they can or can't do," he explained, addressing bishops who silence priests from speaking out on politics.
"We wouldn't tolerate that anywhere else," he added. "I don't think a bishop has the right to tell a priest that they can't come out and speak."
President Trump's executive order goes far in addressing inequities in the Johnson Amendment, which critics say is unconstitutional because it violates the First Amendment rights of faith-based charities.
The Johnson Amendment, named after its sponsor, Lyndon B. Johnson, was passed in 1954 and amended the tax code by granting tax-exempt status to 501(c)3 nonprofits as long as they don't "participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office."
It's been used as a cudgel, however, to threaten and censor politically related speech from the pulpit, causing clergy to fear that any preaching condemning the Democratic Party, e.g., for its promotion of abortion, radical gender ideology or other anti-Catholic teachings could result in federal prosecution. In fact, numerous bishops have placed gag orders on their priests not to speak out on political issues because of their fear of how the Johnson Amendment may be applied to their diocese.
But the Johnson Amendment has numerous critics.
United States Sen. John Lankford of Oklahoma and Rep. Steve Scalise of Louisiana, for instance, have said that "this was a law written by politicians to protect politicians." That's because it unequally applies to faith-based charities while exempting other nonprofits.
"A college professor can say anything to his or her class about any politician, but Pastors, Imams, Priests or Rabbis are prohibited in their official duties from speaking about the same politician," they wrote in a 2017 op-ed.
Lankford and Scalise introduced the Free Speech Fairness Act in their respective houses to remedy the unconstitutionality of the Johnson Amendment and "to prevent government intrusion and suppression of free speech by removing a restriction on speech that has existed since 1954."
"The First Amendment right of free speech and right to practice any faith, or no faith, are foundational American values that must extend to everyone, whether they are a pastor, social worker, or any charity employee or volunteer," said Lankford in 2019, when reintroducing the bill. "People who work for a nonprofit still have constitutional rights to assembly, free speech and free press."
The Family Research Council has written, "The Johnson Amendment is an unconstitutional restraint on free speech, and is a tool the IRS uses to threaten and censor the First Amendment free speech rights of churches, charities, and their leaders."
The Johnson Amendment is based on the notion of "separation of Church and State," a phrase that nowhere appears in the U.S. Constitution. Its enshrinement in law, however, can be laid squarely at the feet of the Ku Klux Klan (KKK).
As constitutional law expert Prof. Philip Hamburger established in his classic work Separation of Church and State, the phrase was first mentioned in the 1947 Supreme Court case Everson v. Board of Education — an opinion authored by Justice Hugo Black, who had been a card-carrying member of the KKK.
The KKK was well known for its anti-Catholic, anti-Jewish, anti-immigrant, anti-minority stance, and its members — including Hugo Black — embraced those biases. His biases — including his anti-Catholic animus — would manifest themselves in the case of Everson, which involved the question of federal money going towards "sectarian" schools.
As Hamburger has noted, "sectarian" was code word for "Catholic." In the Everson case, the vast majority of the money at issue was going toward private Catholic schools.
Separation of Church and State was also a crucial part of the KKK's agenda, and was in fact included in the Klansmen's Creed. New members had to pledge allegiance to the "eternal separation of Church and State."
Before joining the High Court, Black oversaw new members for the largest Klan group in the South, and was a member for two years — resigning just before he ran for Senate. Thus the phrase was familiar to him, as he himself would have taken the oath.
It was that KKK oath — pledging allegiance to the "eternal separation of Church and State" — that became enshrined in First Amendment jurisprudence, thanks to Justice Black.
"In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State,'" wrote Black in his majority opinion, misquoting a letter written by Thomas Jefferson to the Danbury Baptists, in which he assured them their religious worship would be protected from government interference.
Instead, Black used the phrase to mean the opposite of what Jefferson intended, prohibiting religious groups from participating in government activity.
"His whole purpose in writing the decision was pushing down Catholic schools and religious schools in the country," Trainor said, "and he's achieved just that. We've taken for gospel that there has to be separation of Church and State."
President Trump's executive order is a significant and major step in remedying that false "gospel."