The ink was barely dry after President Donald Trump signed his executive order on religious liberty when the "free-thinking" atheists at the Freedom From Religion Foundation sued, saying the order violates the First Amendment's "Establishment Clause."
FFRF filed the lawsuit in its home district, the Western District of Wisconsin, rather than in the District of Columbia's circuit court. The group's leaders, Dan Barker and Annie Laurie Gaylor charge that the order was meant to "usher in a new era of church politicking to the exclusion of secular organizations."
In a press release following the filing of its lawsuit, FFRF stated:
Among its several abuses, Trump's order and statements signal to the Internal Revenue Service that it should not enforce the electioneering restrictions of the tax code against churches and religious organizations, while permitting these restrictions to be enforced against secular nonprofits. FFRF asserts the president has no constitutional authority to selectively veto a legitimate statute that Congress passed and a president signed into law more than 50 years ago.
This part of the law is known as the Johnson Amendment. Under the amendment, all organizations that are recognized as exempt from federal income tax under §501(c)(3) of the Tax Code are subject to the prohibition against political campaign intervention.
The Freedom From Religion Foundation, a 501(c)(3) nonprofit, contends that Trump is violating its equal protection rights and favoring church groups over secular groups, in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. Trump has directed the IRS to do something for which they both lack any enumerated or implied power: to selectively enforce a legitimate statute based solely on religion.
Even if the precise language of the executive order does not accomplish Trump's promise to "totally destroy the Johnson Amendment," the impression his administration is actively trying to foster among evangelical Christians is that the IRS will no longer enforce the Johnson Amendment against them.
The FFRF claims to have "public opinion" on its side, saying that a recent poll suggested 80 percent of Americans believe it is wrong for Christian pastors to talk politics from the pulpit. The irony is that when the president signed the order, he did so while surrounded by Catholics, Jews, Sikhs and faith leaders from other religions, signaling perhaps the FFRF's real target isn't a threat to the so-called "separation of church and state," but rather evangelical Christianity.
The FFRF press release further stated:
FFRF's legal complaint enumerates Trump's many public avowals to repeal the Johnson Amendment restrictions against churches. For instance, Trump promised a closed-door group of hundreds of Christian conservatives in June 2016 that overturning the Johnson Amendment "will be my greatest contribution to Christianity, and other religions. " At the National Prayer Breakfast in February, Trump vowed to "get rid of and totally destroy the Johnson Amendment."
FFRF is asking the court to declare that Trump has violated the establishment clause and the due process clause of the U.S. Constitution, and acted in excess of presidential authority under Article II of the Constitution.
Gaylor notes that the pandering ceremony in the Rose Garden by the White House shows the ongoing harm of the National Day of Prayer, enacted by Congress at the behest of Rev. Billy Graham in 1952. FFRF won a resounding court ruling declaring the National Day of Prayer unconstitutional in 2010, in which the district judge noted: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy." The challenge was stalled when a court of appeals ruled against FFRF's standing (or right to sue), not the merits, in 2011.
The White House has not acknowledged the lawsuit.
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