President Trump’s May 4 Executive Order Promoting Free Speech and Religious Liberty

For 178 years, American pastors, priests, rabbis, and mullahs were permitted to encourage their congregants to vote for, or against, particular candidates. Then, in 1954, Senator Lyndon Johnson tweaked an IRS bill to disallow this, and the legislative package passed on a voice vote. Many suggest it was a clever way to insulate himself from some nonprofits who were bedeviling him by mounting very particular opposition to his candidacies. He’d had some very close calls (one with an 87-vote margin), and the new rule helped defang his critics.

Be that as it may (and motives are both notoriously hard to pin down and ultimately irrelevant when it comes to the prudence or decency of a law), the rule has been in place for over 60 years. Where once, preachers were allowed to urge their congregations to vote against a believing Thomas Jefferson and for a believing John Adams, they were now limited to addressing general principles (e.g., “pro-life” or “pro-choice”) or publishing voter guides delineating the aspirants’ stances on certain issues. (And, of course, a minister can signal his preference by putting his arm around – whether literally or figuratively, or both – a politician he might invite to the platform during a service).

The Johnson Amendment has not aged well, particularly with regards to two concerns:

1. First Amendment. The First Amendment stipulates that religious groups may exercise their faith freely, and that includes free speech, both within and without their auditoriums, sanctuaries, mosques, and synagogues. Beginning in 2002 and ending in 2005, Congress considered “The Houses of Worship Political Speech Protection Act” (HR 235), which would have allowed churches to advocate for or against political candidates as long as such advocacy was not “a substantial part” of their activities. But proponents could muster only around 40% of the vote, even when the bill was modified to limit political advocacy to those in the room at a religious gathering (excluding, say, a television audience). But the issue has not died. Indeed, the First Amendment cause has been strengthened by the Supreme Court’s Hobby Lobby decision, which exempted the “closely held” corporation from Obamacare’s “contraceptive mandate,” an item the Green family opposed on religious grounds, appealing to the Religious Freedom Restoration Act of 1993. Then, that same year, a group of Houston pastors successfully pushed back against the lesbian mayor’s effort to subpoena the text of their sermons regarding city policy dealing with homosexuality and gender identity.

2. Fairness. In the midst of the 2016 election, the Pew Research Center found that six times more American churchgoers heard their pastors support Hillary Clinton than heard their pastors support Donald Trump, yet without repercussions from the IRS. This is the same IRS (with the face of Lois Lerner) which has been faulted for denying or slow-walking tax-exempt status for conservative groups ¹These findings bolster the impression that pastors have gotten a pass if their overt campaigning favors liberal candidates, while conservative congregations have exercised more restraint yet have suffered closer scrutiny by this agency.

Convinced the Johnson Amendment was in error, a group of pastors began acts of civil disobedience in 2008 under the title “Pulpit Freedom Sunday.” The first time around, only 33 pastors made specific election recommendations and then sent their texts/recordings to the IRS with the request that this law be repealed. In recent years, participants have numbered in the thousands, and candidate Donald Trump took their side.

As president, on May 4, Trump signed an executive order “Promoting Free Speech and Religious Liberty.”² Though it did not (and could not) repeal the Johnson Amendment, it instructed government officials to do everything they could to respect liberty of conscience and expression, especially regarding religious bodies. Still, some religious liberty advocates have argued the executive order didn’t go far enough because it left enforcement of the Johnson Amendment to the discretion of IRS agents, “some of whom have abused that discretion for years to silence pastors and intrude into America’s pulpits.” Greater specificity in enforcement guidelines is needed, they say.³ Nonetheless, Trump made it very clear where the burden of justification lay in these matters – upon state officials and not the churches.

None of this is to suggest that it is generally wise (or ever wise, for that matter) for pastors to enter the political fray to the extent that they name names and take sides in the races at hand. That is not the point, though one could make an argument there are causes so pressing and clear cut that to fail to speak pointedly would be irresponsible. Rather, the point is that the freedom to do so should be unfettered, and that the government has no business muzzling the pulpit under our Constitution.

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