On May 4, 2017, President Trump signed an Executive Order designed to “promote free speech and religious freedom.” The First Amendment provides one of the greatest protections that all Americans (and organizations) enjoy—the right to freedom of speech, including political speech and religious freedom. Free speech and religious freedom are core tenets that set America apart from many other countries. However, the question of whether politics and partisan speech should be apart of the dialogue and discourse for religious organizations, that enjoy tax breaks, is a controversial topic.
This is a controversial topic, because many believe that organizations that have declared themselves tax-exempt under the Internal Revenue Code should not engage in partisan political speech. Tax-exempt organizations have been prevented from engaging in partisan political speech, because structural mandates are in place that would empower the Treasury Department and the Internal Revenue Service (IRS) to revoke the tax-exempt status of these organizations for engaging in such speech. There is a presumption that organizations that are not required to pay taxes, and that enjoy certain benefits should remain neutral with respect to certain political policies, candidates, and parties.
The other argument is that there should be “separation of church and state.” Thomas Jefferson coined this phrase in a letter from the 1800s directed to religious leaders and churches. Many argue that this phrase was designed to ensure that the government stays out of the affairs of the church, and/or that the church has no place inserting itself in government. The argument is a current argument that continues. The new Executive Order signed by President Trump furthers this discourse and discussion surrounding the role of the church and political speech among religious organizations and leaders.
The Order permits religious leaders and organizations, that enjoy tax-exempt protection, to engage in speaking freely and openly about partisan politics without the organizations’ tax-exempt status being jeopardized. This means that churches and other religious organizations can NOW freely endorse or oppose candidates, and not face any adverse action by the Treasury Department or the Internal Revenue Service(IRS).
Under current law, 501(c)(3) tax-exempt organizations, namely religious organizations, have been prevented from engaging in partisan political speech. Religious organizations that engaged in partisan political speech, prior to this action, possibly faced being required to pay tax penalties; the denial or revocation of tax-exempt status; and/or being disallowed from certain tax deductions for contributions received by such organizations. The Order has changed the prior requirement, and has relaxed certain mandates in the name of religious freedom.
The U.S. Attorney General, Jeff Sessions, has been called upon to give guidance to federal agencies as it pertains to defining the scope of religious freedom. The IRS and the Treasury Department will also have to come up with a new way to evaluate how this Executive Order should be implemented and the scope of the order. There are major questions that remain unanswered, including whether or not the new relaxed mandates will also apply to other 501(c)(3) non-religious, tax-exempt organizations. If the regulations will not apply to non-religious organizations, then the Trump administration and Justice Department may have yet another case to defend against in court. Non-religious organizations may eventually have standing to bring a strong case under the Fourteenth Amendment Equal Protection Clause, if the scope of this Executive Order is not carefully defined.
For now, clergy, pastors, religious leaders, and religious organizations can interject partisan politics in the pulpit in the name of religious liberty.
Here is the actual text of the Executive Order: https://www.whitehouse.gov/the-press-office/2017/05/04/presidential-executive-order-promoting-free-speech-and-religious-liberty