By Emily Zantow/Courthouse News
MADISON, Wis. (CN) – The Freedom From Religion Foundation on Wednesday voluntarily dismissed a lawsuit challenging an executive order signed by President Donald Trump that targeted an IRS rule saying religious organizations and other nonprofits that endorse political candidates risk losing their tax-exempt status.
“This financial threat against the faith community is over,” Trump said when he signed the order in May. “No one should be censoring sermons or targeting pastors.”
The Wisconsin-based Freedom From Religion Foundation, or FFRF, filed a lawsuit in Madison federal court the same day the order was signed. The atheist group, represented by Richard Bolton of Boardman & Clark in Madison, sued Trump and IRS Commissioner Josh Koskinen.
The executive order targeted the Johnson Amendment, sponsored by then-Sen. Lyndon B. Johnson in 1954, that prohibits tax-exempt nonprofits from endorsing or opposing political candidates.
Trump’s order also allows religious organizations to choose whether or not to provide birth control under the Affordable Care Act.
FFRF challenged the order on the grounds that it violates equal-protection and free-speech rights by giving preferential treatment to churches.
The group said in a statement that it dismissed its complaint because Justice Department attorneys admitted in court filings that the executive order “does not exempt religious organization from the restrictions on political campaign activity applicable to all tax-exempt organizations.”
“By filing an amended complaint we were able to get into the record Trump’s continuing and misleading braggadocio over the effect of the order,” FFRF Co-President Annie Laurie Gaylor said in a statement. “We did not accept that the government was saying one thing, while Trump was saying another. We’re pleased we got the DOJ to reiterate its position twice in a court of law.”
Dan Barker, the group’s other co-president, said “essentially, the Department of Justice called the president a liar and explained to the court that everything the president has said about the Johnson Amendment is nonsense.”
“His religious freedom order as it related to that safeguard against politicking by 501(c)(3) nonprofits was all pomp and no substance—an admission we now have in multiple court filings,” Barker said.
Bolton, FFRF’s attorney, said via email Thursday that “a wait and see approach right now is warranted, but current dismissal was without prejudice.”
“The underlying executive order at issue in suit may be a moot issue given the uncertainty of the Johnson Amendment as part of the tax bill being negotiated between the House and the Senate,” Bolton said. “The government also has admitted in court filings that the executive order does not by itself legally nullify the Johnson Amendment, despite President Trump’s pronouncements to the contrary.”
Three years ago, FFRF also voluntarily dismissed a similar lawsuit against Commissioner Koskinen, a Wisconsin church and its pastor that sought to enforce the Johnson Amendment.
Daniel Blomberg of the Becket Fund for Religious Liberty, an attorney for a group of pastors that intervened in the case, said in a statement he was happy with the dismissal.
“FFRF is running away again, and this time for good—in federal court, you don’t get a third bite at the apple. Which is great news for pastors, priests, rabbis, and imams who want to preach their faith without IRS censorship. The pulpit is one place where a little more separation of church and state would go a long way,” Blomberg said.
FFRF, which advocates for the separation of church and state, has 28,000 members nationwide.
Attorney James Luh with U.S. Department of Justice did not immediately respond Thursday to an email request for comment.