Repealing the Johnson Amendment and the Meanings of Religious Liberty

Most of the attention yesterday, May 4th, was on the congressional vote repealing the Affordable Care Act. With good reason. But just up the road from the Capitol, President Donald Trump also signed his thirty-fourth executive order. Titled “Promoting Free Speech and Religious Liberty,” the order counseled the Department of the Treasury not to pursue punishment of religious leaders or institutions who speak out “about moral or political issues from a religious perspective.” (It also called for support of religious institutions who claim objections from preventive care, but that’s another issue.) Put simply, the order takes aim at the “Johnson Amendment,” or a bill that prohibits political activities by non-profit organizations. That included churches. Under the law, a religious institution could face serious financial penalties, including losing tax-exempt status, for doing things like endorsing candidates. Since the executive branch can’t merely revoke the bill—though the order encourages the legislature to do exactly that—it does seek to weaken it by requesting the Treasury not to enforce it. This theoretically means that religious organizations can now speak out on political matters and political leaders to their hearts’ content without fear of federal retaliation.

It’s a shame the bill will be overshadowed by the health care debate, because it is a conversation that America needs to have. Polling seems to imply that a majority of Americans don’t want their churches to endorse candidates. Experts have pointed out that this action can enable an infusion of even more cash into the public sphere, as churches can now serve as non-taxed super-pacs in support of a campaign or cause. There will (hopefully) be plenty of coverage by legal scholars and tax nerds to better explain what this will mean going forward.

But I’m a historian. So I want to briefly talk about what the executive order means within America’s long tradition of “religious liberties.” Or at the very least, I want to make two broad points. First, compared to the first century of America’s existence—the religious “founding” referenced in Trump’s order itself—this is a drastic shift from previous practices. But put in the context of the last few decades, the executive order is more a reflection of contemporary circumstances. That is, the revocation of the Johnson Amendment is simultaneously radical and commonplace.

Trump’s executive order is correct that most early Americans believe religion played a crucial role in politics. As scholars have demonstrated, much to Thomas Jefferson’s chagrin, religion became even more important following the Revolution. Even after disestablishment, or the ending of “established” religions at the federal and local levels, most assumed that religious ideals still infused political action. In the vacuum of federal oversight over ecclesiastical practice, a Protestant establishment quickly dominated the mainstream and dictated cultural norms. Put another way, religious regulation was merely privatized. Those on the margins were bullied into submission. Alexis de Tocqueville called this the “tyranny of the majority.” Religious groups were still in control.

But Protestant culture had to draw the line somewhere. They did so by denouncing the practice of clerical interventions into political actions. As Spencer McBride recently demonstrated, the American clergy learned that they had to walk a tight line of teaching political principles without manipulating electoral activities. Ministers teaching their congregations values and judgements were fine; ministers telling their congregants how to vote would be an infringement on the personal conscience.

Those who transgressed these boundaries faced the wrath of angry neighbors. The most obvious examples are the Mormons and Catholics, who quickly come to mind because I’m writing a paper on the topic this very week. Critics accused these groups of corrupting the democratic process through clerical directives. One newspaper editor argued that while the Mormons “have the same rights as other religious bodies,” as soon as they “step beyond the proper sphere of [a] religious denomination, and become a political body” they lose the right to appeal to religious liberty. Another wrote that this “clannish” principle was foreign to American soil and similar to what the Catholics had done in their communities. Indeed, another early anti-Mormon claimed that the LDS Church was “natural allies” with “Romanism” and its un-democratic activities. Joseph Smith’s involvement in state elections was one of the factors that would eventually lead to his death. In the 1840s, ecclesiastical intervention into electoral politics was a major offense worthy of both legal and extralegal retaliation.

Flash forward over a century. Lyndon Johnson sponsored what came to be known as the “Johnson Amendment” in 1954 without any controversy. Even in the midst of a religious resurgence in America—this is the same period that “One Nation Under God” became a national motto and “In God We Trust” was added to our currency—there remained broad support for keeping non-profit organizations out of explicitly partisan activities.

Yet the regulations were never really enforced, especially in recent decades. This is true for both sides of the political divide. Most famous is the Religious Right, a coalition in the 1980s that grouped religious and conservative voices behind Ronald Reagan. Jerry Falwell and other spiritual leaders spoke clearly and directly on political issues. They would no longer watch from the sidelines. Two decades later, Jerry Falwell Jr. was one of Donald Trump’s foremost spokesmen. As a result of this historical thrust, 81% of white Evangelicals voted for the otherwise non-religious GOP candidate in 2016. In many ways, Trump’s attack on the Johnson Amendment is a vindication of their support.

But conservatives are not the only people who benefited from the amendment’s lack of enforcement. African-American churches have long been outspoken on political issues, and they were often at the forefront of Hillary Clinton’s campaign, especially in the South during the primaries. Liberal religious groups have vehemently supported same-sex marriage, social justice, and tax reform for quite some time. The Religious Left may not nearly be as organized and powerful as its conservative counterpart, but it is far from non-existent.

So this is all to say that while Trump’s executive order may appear radical when compared to America’s long-form history—and that the order’s appeal to a particular religious founding is quite baseless—it is actually more a reflection of recent trajectories than a disruption from them. (Ironically, the LDS Church has stated they don’t plan to take advantage of the new rules.) The real changes have been quietly happening over the past half-century, and federal policy is only now beginning to catch up. The weakening of the Johnson Amendment, then, is not so much a new direction as it is the culmination of a trek already taken.

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