‘Religious Freedom’ Is a Core Value, Not a Scare Phrase

by on

The executive order is significantly reduced in scope from earlier drafts promoted by the Heritage Foundation and other social conservatives. In its final form, it:
1. Declares that it is the policy of the administration to protect and vigorously promote religious liberty;
2. Directs the IRS to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit (and which mostly goes unenforced, especially against black churches supporting Democratic candidates);
3. Provides regulatory relief for religious objectors to Obamacare’s preventive services mandate, a position supported by the Supreme Court decision in Hobby Lobby.

The ACLU is threatening to sue. Update: No, now they’re not.


Social conservatives, rightly, see a defeat—Trump (and Ivanka/Jared) are not, and have never been, on the anti-gay bandwagon.


But the Human Rights campaign isn’t changing its narrative:


Furthermore. From the comments: To the charge “Isn’t it more accurate to say that [the Johnson Amendment] mostly goes unenforced against ‘any’ churches? There has been exactly one (1) prosecution of a church under the Johnson Amendment in the 63 years it’s been around. Why single out black churches in particular?,” reader Jason replies:

Short of actual prosecution is the threat of prosecution. White evangelical churches have been warned, from time to time, about supporting socially conservative politicians and “crossing the line” from the pulpit, and liberal groups have threatened to make this an issue. But Stephen is correct; African-American churches sermonizing to vote for Democrats are under much less pressure, owing to the history of the civil rights movement. To raise the issue (and some on the right do) is to invite the charge of racism. So black churches feel much less constrained than do white churches.

26 Comments for “‘Religious Freedom’ Is a Core Value, Not a Scare Phrase”

  1. posted by Jorge on

    Successful or not, this move by the Trump administration puts the public on notice that there is political theory, political power, and political will behind the idea that freedom of religion has come under attack by other civil rights causes. It will serve to persuade, intimidate, and deter.

    There is more, of course, but I’ll stick to this: does President Trump really think he can sign an executive order promoting religious liberty on one hand, and on the other wave a rainbow flag?

    If I were me, I’d declare victory Now Right Now.

    • posted by TJ on

      1. Churches – like many other religious and social groups – can choose to become a nonprofit. Its not a requirement.

      Non-profit status is setup to benefit charities providing social services. Thats why the status exists and comes with certain tax/financial benefits.

      When a religious group agrees to take the benefits, it agrees to follow the rules.

      Again, you dont need to be a nonprofit to use the rights protected by First Amendment.

      When Ms. Magazine became a nonprofit, it agreed that it would not endorse candidates, but is free to talk about issues.

      When museums become nonprofits, similar rules apply. This is the general rule of thumb with churches, temples, mosques and synagogues…

      Faith based nonprofits have not had trouble talking about issues. Candidates have not had trouble “endorsing” a denomination, even through the denomination cant endorse the candidate.

  2. posted by Alex on

    You say that the Johnson Amendment “mostly goes unenforced, especially against black churches supporting Democratic candidates.”

    Isn’t it more accurate to say that it mostly goes unenforced against *any* churches? There has been exactly one (1) prosecution of a church under the Johnson Amendment in the 63 years it’s been around. Why single out black churches in particular?

    • posted by Jason on

      Short of actual prosecution is the threat of prosecution. White evangelical churches have been warned, from time to time, about supporting socially conservative politicians and “crossing the line” from the pulpit, and liberal groups have threatened to make this an issue. But Stephen is correct; African-American churches sermonizing to vote for Democrats are under much less pressure, owing to the history of the civil rights movement. To raise the issue (and some on the right do) is to invite the charge of racism. So black churches feel much less constrained than do white churches.

      • posted by Alex on

        Do you have any data to support your contention that “African-American churches […] are under much less pressure”? How many “white” churches have received these letters? How many “black” churches have endorsed candidates without receiving letters.

        I’m seeing a bunch of assertions from you and Stephen, but no actual statistics.

      • posted by Jorge on

        That is an eloquent way of remembering and repeating the conservative argument against the Johnson Amendment. It is beyond a TV viewer’s memory to recall what this is based on, other than the obvious: black churches get political, white churches only get ideological. Differential enforcement is an easy explanation for this difference, and most people can almost remember at least one story about someone wanting to “warn” a church.

        Memory is foggy. Ink would be better.

    • posted by Tom Scharbach on

      White evangelical churches have been warned, from time to time, about supporting socially conservative politicians and “crossing the line” from the pulpit, and liberal groups have threatened to make this an issue.

      Endorsing/supporting particular political candidates is prohibited by the law, and although the line is not a bright line (see my comment below quoting an IRS enforcement letter to the UCC), it is a line that is relatively straightforward.

      Christio-Republican opposition to the Johnson Amendment has a history, as do all things political. As conservative Christians aligned with God’s Own Party, the Johnson Amendment stunted efforts to create an effective political machine involving pastors and congregations — if a pastor can’t instruct congregants on who to vote for, but is limited to discussing issues alone, the movement’s potency as a political mini-PAC is limited.

      Anyone who was involved in the anti-marriage amendment campaign, as I was in Wisconsin in 2006, is aware of the political power of conservative Christian churches. When presented with the right issue (such as “Marriage: One Man, One Woman”), the pastor/church network can be remarkably effective, spurring very high voter turnout relative to the rest of the population, and focusing voting on the issue. The fact that Wisconsin’s anti-marriage vote exceeded polling by 5-7% in 2006 is evidence of the power of the pastor/church network.

      The problem for Christio-Republican religious mini-PAC’s is that the issue model does not translate well into general elections, where voters tend to look at candidates rather than issues. Turnout falls off, and too many conservative Christians vote against the anointed candidate. And that’s why is has become so important to Christio-Republicans to rid themselves of the Johnson Amendment.

      The problem, if course, is that the Executive Order doesn’t rid Christio-Republicans of the Johnson Amendment. The law remains in effect, and it remains illegal for the churches to endorse/support particular candidates from the pulpit. The solution? Eliminate enforcement. That’s what we are seeing with the Executive Order.

      Stephen’s long-smoldering resentments about black churches becomes relevant as the pattern of enforcement/non-enforcement moves forward. While it is clear than the IRS will be under considerable pressure not to enforce the Johnson Amendment with respect to Christio-Republican mini-PAC’s, will the same become true of African-American pastors/churches, which have trended strongly Democratic since the Southern Strategy? We’ll have to see.

      • posted by Kosh III on

        In 2008 a huge Southern Bigot Convention congregation here held various pep-rallies and fund raisers for GOP causes. They got lots of free publicity from the media, had big-name speakers etc etc.
        But karma is a bitch. A few years ago the pastor resigned after a scandal over embezzlement and other assorted problems. The congregation shrank to a few hundred and sold their massive “campus” which is now HQ for the Catholic diocese.

        • posted by Jorge on

          I hope the first thing they did upon moving in was purify the soil.

  3. posted by Tom Scharbach on

    … which prohibits religious leaders from speaking about politics and candidates from the pulpit …

    The reason that the Johnson Amendment has been largely unenforced is that the scope of the law is extremely narrow.

    The law prohibits clergy and religious organizations from endorsing/supporting political candidates — in the words of the IRS: “participating in, or intervening in (including the publication or distribution of statements), any political campaign on behalf of (or in opposition to) any candidate for public office“.

    The law does not clergy or religious organizations from “speaking about politics”. Clergy and religious organizations are permitted to weigh in on political issues, legislation and voter referendums, issue/distribute “voter issue guides” and so on. So long as the clergy or religious organization refrain from endorsing or directly supporting a particular candidate, the law isn’t violated.

    The EO issued today does not repeal or amend the law (that requires Congressional action), and nothing much will change, except that the IRS will probably initiate less investigations going forward.

    The EO isn’t a big deal, although Trump is acting like it is, and fellow travelers on the right have long been promoting the idea that the Johnson Amendment is some sort of gag order prohibiting clergy and religious organizations from “speaking about politics”.

    More of the same old, same old dreck from the right.

    If anyone is interested in the kind of activity that has triggered IRS action in the past, this IRS letter from 2008 will give you a flavor:

    DEPARTMENT OF THE TREASURY
    INTERNAL REVENUE SERVICE
    TAX EXEMPT AND GOVERNMENT
    ENTITIES DIVISION
    CERTIFIED MAIL
    Date: FEB 20 2008

    United Church of Christ
    700 Prospect Ave E
    Cleveland, OH 44115

    Dear Sir or Madam:

    The Internal Revenue Service (the “Service”) is responsible for administering the Internal Revenue laws of the United States, including those that apply to organizations exempt from federal income tax. To carry out that responsibility, section 7602 of the Internal Revenue Code (“IRC”) authorizes the Service to determine the correctness of any tax return, to make a return when none has been filed, and to determine the tax liability of any person or organization. However, IRC section 7611 imposes restrictions on the Service in conducting tax inquiries and examinations of churches and conventions or associations of churches.
    In passing IRC section 7611, Congress intended to ensure that the Service carry out its obligation to resolve questions concerning the tax liability, if any, and the tax-exempt status of churches and organizations claiming to be churches, with due regard for both the rights of church organizations and the responsibility of the Service to enforce the Internal Revenue laws.

    Because a reasonable belief exists that the United Church of Christ (“church”) has engaged in political activities that could jeopardize its tax-exempt status as a church described in section 501(c)(3) and exempt under section 501(a), this letter is notice of the beginning of a church tax inquiry described in IRC section 7611(a). We are sending it because we believe it is necessary to resolve questions concerning your tax-exempt status as a church described in section 501(c)(3) and in section 170(b)(1)(A)(i) of the Code.

    Our concerns are based on articles posted on several websites including the church’s which state that United States Presidential Candidate Senator Barack Obama addressed nearly 10,000 church members gathered at the United Church of Christ’s biennial General Synod at the Hartford Civic Center, on June 23, 2007. In addition, 40 Obama volunteers staffed campaign tables outside the center to promote his campaign.

    All section 501(c)(3) organizations, including churches, their integrated auxiliaries, conventions or associations of churches, are prohibited from participating in, or intervening in (including the publication or distribution of statements), any political campaign on behalf of (or in opposition to) any candidate for public office. This is an absolute prohibition, violation of which results in denial or revocation of exempt status and/or the imposition of certain excise taxes, if applicable.

    The prohibition against political campaign activity does not prevent candidates from being invited to speak at an event of an organization described in section 501(c)(3). If a candidate is invited to speak in his or her capacity as a candidate, then other candidates running for the same office must also be invited to speak and there should be no indication of support for, or opposition to, any candidate by the organization. Also, the prohibition does not prevent an organization’s officials from being involved in a political campaign, so long as those officials do not in any way utilize the organization’s financial resources, facilities, or personnel and clearly indicate that the actions taken or the statements made are those of the individuals and not of the organization.

    A list of specific questions about your operations/activities is attached. Please answer each question completely. If your response resolves our concerns about your exempt status and tax liability, it will not be necessary to pursue this matter further.

    Attached as required by section 7611(a)(3)(B)(ii), is a statement of your administrative and constitutional rights during a tax inquiry and examination. Your rights include the right to a conference with Service representatives to discuss our concerns before the Service begins an examination. The Service will formally offer you the opportunity for a conference in a Notice of Church Examination Letter, if such a notice of examination is sent to you.

    Please reply within 15 days of the date of this letter to:

    Internal Revenue Service TEGE Division
    Attn: Kenneth Roton
    1601 Market Street, 19th Floor
    Philadelphia, PA 19103
    If we do not hear from you within that time, we may issue a Notice of Church Examination Letter, which section 7611 requires to be issued before we initiate an examination of your records or religious activities.

    If you have any questions, please contact the person whose name and telephone number are shown above.

    Thank you for your cooperation.
    Sincerely yours,

    Marsha Ramirez
    Director, EO Examinations

    Enclosures:
    Questions
    Statement of Administrative and Constitutional Rights

    If I recall correctly, the matter was not prosecuted.

    • posted by Kosh III on

      FYI, the United Church of Christ(UCC) is one of the oldest and most liberal mainline denominations in the US. I can personally attest that the UCC was accepting gay people since the early 80s.

  4. posted by Houndentenor on

    Chad Griffin is right. This is just a license to discriminate against gay people, even in places where that is illegal. Stephen, typical homocon hypocrite, lives in a safely blue area where that is not likely to happen and as a typical right-wing sociopath he thinks that he’s okay and the rest of us can go fuck ourselves. I’m done here. After far too long. Any gay person who is still spouting this nonsense is irredeemable and not worth anyone’s time.

  5. posted by Tom Scharbach on

    Here’s the text of the order, if anyone is interested in reading it.

    It is mostly fluff and bubbles.

    As I read it, the single material substantive change involves the mandatory coverage mandate, and that is doomed anyway under the Trumpcare law passed in the House this afternoon, assuming that Republicans can get their act together enough to actually get Trumpcare through the Senate.

  6. posted by Tom Scharbach on

    The ACLU is threatening to sue.

    Uh, Stephen, wrong statement. That was the statement issued the other day in anticipation of the widely reported resurrection of the February EO that was dropped after an uproar ensued about the leaked draft.

    This is the ACLU statement on today’s EO:

    Today’s executive order signing was an elaborate photo-op with no discernible policy outcome. After careful review of the order’s text we have determined that the order does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process. The order portends but does not yet do harm to the provision of reproductive health services.

    President Trump’s prior assertion that he wished to ‘totally destroy’ the Johnson Amendment with this order has proven to be a textbook case of ‘fake news.’ The directive to federal agencies to explore religious-based exceptions to healthcare does cue up a potential future battle, but as of now, the status quo has not changed.

    What President Trump did today was merely provide a faux sop to religious conservatives and kick the can down the road on religious exemptions on reproductive health care services. We will continue our steadfast charge to defend Americans’ right to exercise their religion and ensure their freedom from having others’ beliefs forced upon them.
    The ACLU stands ready to sue the Trump administration and in the event that this order triggers any official government action at all, we will see Trump in court, again.

    Lucky for you, though, the actual ACLU statement does say that “The ACLU stands ready to sue the Trump administration and in the event that this order triggers any official government action at all, we will see Trump in court, again.” so it looks like your sentence (“The ACLU is threatening to sue.”) is accurate, if only conditionally.

  7. posted by Lori Heine on

    Any attempt by the government to protect “religious liberty” by defining what religion is or is not is an attempt to get government to determine what is, or is not, a legitimate religious belief.

    In this crusade, the real aim of the social conservatives is twofold:

    (1) To revive itself as a political power, and

    (2) To protect anti-gay Christians from the rapidly-increasing acceptance of LGBT people in the churches.

    It’s a fundraising cash cow, a ready source of votes from the ignorant and hysterical, a way to paint themselves as martyrs instead of persecutors and a potential State imprimatur on the beliefs of the side that’s losing the battle to keep gays out of the churches.

    They don’t like the direction God very much appears to be taking things. So much for this having anything to do with genuine faith.

  8. posted by Tom Scharbach on

    The discrimination dog that didn’t bark.

    I imagine that we’ll get the backstory on the morphing of the February draft order into Section 4 of the EO issued yesterday.

    We will have to keep a sharp eye on the Attorney General (“that pinch-faced little peckerhead” in the words of one of my liberal friends from his home state) and his “religious freedom” directives to departments and agencies as we move forward.

    • posted by Jorge on

      I realize the better instinct is to engage your liberal friend in a more spirited Combat, but I think that “that pinch-faced little peckerhead” crack reveals the same kind of kind of disqualifying personal bias that led the Ninth Circuit to turn the First Amendment on its head when it blocked the Trump executive order not because of what the EO said, but because of what Donald Trump said on the campaign trail.

      I think it’s refreshing that after eight years of Attorneys General who seemed incapable of trusting police departments, there’s someone who trusts the police. Trusts them too much? Yes. Was it absolutely necessary to go from “Some medical marijuana factories are drug dealers in disguise” to “Marijuana is bad, period, and breaks federal law”? Maybe not.

      However, this is the result of the country not only failing to “keep a sharp eye” on Attorney General Holder when he was crapping all over anything not-black, but partisans cheering on his words and mandates. For whatever reason, the country chose not to “resist” the conduct of the Justice Department until November 2016. Four to eight years of “South Alabama, that sounds worse!” is not insufferable.

  9. posted by Jorge on

    It is mostly fluff and bubbles.

    “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.”

    This is very reassuring to a paranoid public. The tone you set is important. Every boundary has people who test it, and over time if those borders are not patrolled, a feint becomes an encroachment, then becomes an invasion.

    “The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate”

    Shall consider? I begin to see why the ReliCons are upset.

    “Severability.”

    It’s about @!#?@! time the Trump administration learned to include a severability clause in its EOs!

    (The second immigration executive order included one, too. It didn’t stop some “judge on a Pacific island” from blocking it. Maybe there’s less ozone there and it makes people illiterate.)

    I agree with you, Tom. I’m glad I celebrated early.

    Now I get to celebrate again more stoically.

  10. posted by Tom Scharbach on

    I agree with you, Tom. I’m glad I celebrated early. Now I get to celebrate again more stoically.

    In all likelihood, you will get to celebrate little by slowly, just not all at once in a Trump-o-Rama ejaculation.

    Attorney General Sessions is a longstanding opponent of equal treatment under the law for gays and lesbians, and I think you can count on his directives to departments and agencies to give you comfort and succor, kind of like prolonged foreplay.

    We’ll see a lot of lawsuits down the road.

  11. posted by Lori Heine on

    The Republicans know that people of faith who feed the homeless are being hauled away in handcuffs. They say nothing about it. Then they cry about baking cakes.

    They know that churches that take in the homeless, in weather so cold that they would otherwise possibly freeze to death, are being forced by municipal authorities to kick them back out into the street. But they say nothing. Except to scream about having to take wedding photos.

    This is sick. It’s evil. To take money for shilling for these fiends is to sell one’s soul.

    Disgusting. Take any reference to “libertarian” off of this blog. Stand up for religious freedom ALL the time–in every instance–or shut the hell up and go away in shame.

  12. posted by Tom Scharbach on

    Disgusting. Take any reference to “libertarian” off of this blog.

    For what it is worth (not much, to be honest) IGF no longer makes any reference to “libertarian” on the blog, and it has been at least a year or two since Stephen self-identified as a “libertarian” in any of his posts. I can count the number of times that Stephen has supported the Libertarian Party and/or any of its candidates during the last decade on the fingers of one hand (twice that I can remember in the last four or five years), and still have fingers left over to do useful work.

    To the extent that Stephen and/or IGF have “libertarian” pretensions at all, the ties are to “libertarian” writers and institutions (Boaz, CATO, Olson, Will, etc.) that are part of the so-called “libertarian” wing of the Republican Party, Republicans claiming a “libertarian” orientation as and to the extent that a libertarian ideas are and/or can be usefully deployed in service of the Republican Party. I don’t disparage that claim on their part, but note that they represent a limited and narrow form of libertarianism.

  13. posted by Tom Scharbach on

    “Religious Freedom” Is a Core Value, Not a Scare Phrase

    When used to dennote government-sanctioned special discrimination against gays and lesbians with respect to same-sex marriage, in a way that violates principles of “religion-neutral”, “issue-neutral” and “class-neutral”, “religious freedom” is properly set in “scare quotes”** by anyone who cares about religious freedom.

    That does not mean, of course, that support for government-sanctioned special discrimination against gays and lesbians with respect to same-sex marriage is not also a “core value”, as it is clearly central to Christio-Republican religious thinking, the only form of religious freedom deemed worthy of protection.

    The long and continuing history of Christio-Republican efforts to treat gays and lesbians as a special class targeted for legal discrimination is evidence of how central this core value is in Christio-Republican political thinking.

    That doesn’t bother me — politics is politics, and I’ve long since given up on any hope of meaningful support for gays and lesbians from the Republican Party any time soon — and I am not surprised that Stephen, who has an equally long history as an apologist for the Republican Party and its candidates, sings from the same hymnal.

    ** Per Wikipedia: The term “scare quotes” as it refers to the punctuation marks was coined in 1956 by G. E. M. Anscombe in an essay “Aristotle and the Sea Battle” published in Mind; a Quarterly Review of Psychology and Philosophy. The use of a graphic symbol on an expression to indicate irony or dubiousness goes back much further: Authors of ancient Greece used a mark called a diple periestigmene for that purpose. Beginning in the 1990s the use of scare quotes suddenly became very widespread. Postmodernist authors in particular have theorized about bracketing punctuation including scare quotes and have found reasons for their frequent use in their writings.

  14. posted by Jorge on

    “Organized gay groups, committed to keeping their base in a constant state of alarm, will be reluctant to admit that this is a big win for their cause. Even so, it fits the theory I’ve argued for some time that lifelong New Yorker Trump doesn’t want to go around picking fights with the gay community.”

    Of course not.

    Hence his offering of the Johnson Amendment. It’s one of the few ways one can imagine these days to give religious conservatives more power without playing the gay card.

    Disgusting. Take any reference to “libertarian” off of this blog. Stand up for religious freedom ALL the time–in every instance–or shut the hell up and go away in shame.

    Mmm-hmm. No. Sorry.

    In any given round I may have up to five cards.

    Now, five cards may sound like a lot, but you have to understand that some cards are meant to be played, and some are meant to be held in reserve. Some rounds contain problems that can be solved with many cards, some with few.

    I have many non-allies who also have their hands. If they don’t play a card, sometimes I do. But I usually don’t.

    If I spent every moment of my life defending against every tertiary attack on religious liberty, I wouldn’t retain the power to act in the more decisive battles, or those that not enough forces are committed to. Either that, or I wouldn’t retain the power to act in those other causes that I support or may come to support.

    The difference between Republican and libertarian politics is a political question, not a moral one.

    • posted by Tom Scharbach on

      If I spent every moment of my life defending against every tertiary attack on religious liberty, I wouldn’t retain the power to act in the more decisive battles …

      And the decisive battle of all decisive battles, of course, is the “religious freedom” to discriminate against gays and lesbians with respect to marriage. Right?

      It must be, because that is what distinguishes conservative Christians from other Christians, and what distinguishes Christio-Republicans from the rest of America.

  15. posted by John in Chicago on

    Can we say “hoisted by one’s own petard”? The Christian right asked for it. We’re so persecuted!!! But, ummm, since we actually enjoy the same freedom of speech as everyone else, except for our leadership not being allowed to name politicians and political parties in church, we’ll just have to make that the example of our woeful plight (and regardless of the fact that the law wasn’t actually enforced and all your trying to be dragged into court by violating it went nowhere). But now that’s suddenly small potatoes! Sorry, right-wing Christians, but you set yourself up for this with your own bullsh!t.

Comments are closed.