A Jewish Response to Fears of the Presidency: Uniting against the Johnson Amendment and other similar measures

For more than six months, many progressives and liberal Jewish leaders have described a sense of fear provoked by the Trump presidency. They are concerned that executive overreach or the abuse of administrative powers might harm groups disfavored by the Trump administration.

It is easy to forget that only six months ago, many conservatives also lived in fear, albeit of a potential Clinton presidency. It may even seem a fading memory that their concerns were induced by eight years of an Obama presidency that witnessed some of the worst abuses of executive power in American history, including attempts to silence and intimidate political opponents, such as the surveillance of organizations and Congressmen opposed to the Iran deal, and the use of the IRS to target tax-exempt organizations opposed to administration policies.

Where does this lead us as a nation? Are liberals and conservatives doomed to an endless cycle of fear every election?

As a minority alienated and persecuted throughout history, Jews of all denominations and political beliefs should approach the current unsettling environment as an opportunity to make beneficial long-term changes to our political system. Jews should work together to pursue policies intended to make Americans secure in expressing their views, regardless of who sits in Congress or the White House. Despite the prevalence of political divisiveness, there are opportunities for finding common ground.

The Trump administration recently highlighted one such opportunity in its executive order of May 4, 2017 that orders the IRS to limit its enforcement of the Johnson Amendment, which bans 501(c)(3) non-profit organizations from engaging in partisan political activity. This piece of legislation forbids not only endorsing candidates, but arguably even advocating for specific policies in a context that seems to favor a particular candidate for public office. Regardless of the wisdom of the executive order itself, which has faced a considerable degree of criticism, Americans, and Jews in particular, should support repealing the Johnson Amendment, as well as the reversal of other regulations and judicial rulings rules that allow the government to use the granting of tax-exempt status to regulate or stifle speech by non-profit organizations.

Some concrete cases illustrate how far-reaching the Johnson Amendment truly is. Consider an election featuring a progressive supporter of single-payer health care versus a conservative free-market reformer. Several weeks before the election, a synagogue could lose its tax-exempt status if its rabbi preaches that Judaism prioritizes supporting social justice in all areas of life. Similarly, a synagogue could lose its status if its rabbi preached that Judaism is strongly opposed to socialism in all its forms, and that his congregants have a religious obligation to oppose it. All that would matter for the purposes of enforcement is who is running the IRS. Indeed, the law is so ambiguous that many rabbis refrain from making any remarks that could even be perceived as political.

A similar legal problem was created by the Supreme Court’s decision in Bob Jones v. United States (1983). In a ruling involving the tax-exempt status of a university that banned interracial dating, the Court allowed the IRS to do something that no law actually permits: revoke the tax-exempt status of any non-profit that it thinks does not, in a broad sense, serve the public good. The precedent set by this decision could of course be used to revoke the status of such loathsome organizations as the KKK or the Nation of Islam, but it places a target on the backs of many ordinary charities. Just imagine if, instead of simply withholding funding from Planned Parenthood, the Trump administration’s IRS revoked Planned Parenthood’s tax-exempt status, arguing that the organization does not serve the public good? What if it did the same to the ACLU or other progressive groups? After the Obama administration IRS’s discrimination against conservatives, does this step seem so far-fetched?

Civil society—the ways people come together outside of work, family, and government—should enjoy the highest degree of freedom from coercion. The only alternative is to live in fear that “the other side” may take control of the executive branch and discriminate against its opponents using the full force of the government. Eligibility for tax-exempt status should be determined by simple, clear-cut requirements that give little room for subjectivity and political manipulation. Progressive and conservative Americans should both be free to preach and teach their religious and political views without the fear of losing tax-exempt status for holding the wrong views or for weighing in on political matters. Progressives should not have to worry that the ACLU will lose its tax-exempt status, nor should conservatives have to be fearful of the Obama administration’s Solicitor General’s remark that religious institutions might lose their tax-exempt status if they advocate traditional views of marriage. And Jews, who have endured so much persecution and who now find themselves on both sides of the political aisle, should seize the opportunity to unify and lead the effort for religious and political freedom in this area.

It is therefore particularly tragic and shortsighted that many progressives support the Johnson Amendment, which the Trump administration has expressed a desire to repeal.

Organizations like Freedom from Religion seem to feel that the government can and should forcibly separate politics from religion, thinking that religious Americans will promote only conservative causes that they find objectionable. But American Jews provide a case in which progressive groups are far more political and vocal than traditional groups. Congregants are far more likely to hear political sermons in Reform synagogues, which tend to emphasize progressive political issues as part of their religious outlooks, than in Orthodox ones, which tend to eschew politics in the synagogue in favor of ritual or “spiritual” matters. And yet, in defending the Johnson Amendment, some progressive Jews are defending a policy that is more likely to be enforced against their own communities.

As for the Orthodox, some rabbis privately believe that the Johnson Amendment is a good thing, helping the Orthodox to keep politics out of religion, and thereby fostering religious devotion in synagogues that tend to be more politically divided than Reform or Conservative congregations. But opposing legal reforms in this area is a tremendous mistake, and it sets an incredibly dangerous precedent that we are willing to tolerate excessive governmental restrictions on speech simply to avoid engaging in debate.

During my years as a congregational rabbi, I never wished to violate the Johnson Amendment from the pulpit, and most fellow Orthodox rabbis I know feel the same way. But we might, under the right circumstances. The instinct of many rabbis, across the denominations, to feel that religion and politics are best kept separate is a noble one. But shouldn’t it be up to clergy—and, by extension their congregants—to decide when exceptions should be made? Particularly when a society is headed in the wrong direction, religious institutions can provide a critical and necessary moral voice. We wish the Catholic Church had done more against the Nazis. We are glad that the Catholic Church opposed Communism. In the United States, religious organizations fought slavery, worked with organized labor to win postal workers Sunday as a day off work, pressed the government to aid victims of foreign genocide, and promoted immigration policies that helped build our nation. In these and many other areas, vibrant religious politics influenced public policy in positive directions. We should not ignore these developments, and we should vigilantly protect the abilities of all Americans to speak their consciences without fear of government retaliation.