Free Speech Ain’t

Okay, this one is bad, folks.

A lot of my readers on the religious side of things may be excited today, but take it from me, people:  This is nothing to celebrate.

In case you missed it, President Donald Trump signed an executive order which relaxes enforcement of the Johnson Amendment, that portion of the tax code that prevents (among other things) churches from endorsing political candidates while retaining their tax-exempt status.  The theory behind the order is that current law unduly restricts the First Amendment rights of church employees.  Considering that most preachers and priests represent their church 24/7/365, this is a sound argument; the poor souls can’t even talk politics at Thanksgiving dinner without drawing the ire of the IRS.

Right now, some of my readers will be disagreeing with me, and the more closed-minded anti-religion among them will be leaving the page (especially after I said closed-minded).  Which is too bad, because there’s a good discussion to be had on the subject of free speech and tax exemption for churches.  Ah, well; maybe next article.

Fortunately, instead of dwelling on ethics and relative morality, that frees me up to talk about the dangers inherent in this order.  In particular, I’d like you to consider not what it does, but what it doesn’t do.

This order is intended to relax restrictions on speech from the pulpit and choice by business owners and individuals where religion is concerned.  (Yes, this impacts the Hobby Lobby decision, reinforcing it.)  The trouble is, it doesn’t actually do what it’s intended to, and what people say it does.  All it actually does is relax enforcement of the law, and that’s a serious problem.

Because what’s going to happen in four years (or eight or twelve; no matter) is that this order is going to be struck down.  The next Democrat to hold the Oval is going to take this off the books in precisely the same way Trump and the 115th Congress have been working overtime to undo a lot of President Obama’s decisions.  That they will do this is not a matter of conjecture; it’s inevitable — because that’s the way the Presidency works.  This can no more be prevented than sunset or the tide.  And it’s the reason responsible leaders don’t try to govern by executive fiat in the first place.

Because when it’s undone, that frees up the IRS to go after everyone who has used their newfound privilege to talk politics in church, to hold campaign events, and to use the pulpit as a springboard from which to run for office.  Churches will be audited left and right, and even if none get shut down, the legal expense alone will be enough to wipe the smallest out.  What’s more, when all this happens, that whole discussion I mentioned about the tax-exempt status of churches is going to be reopened with a vengeance — and under a hostile administration.

“But what about the Constitution?” I hear you cry.  “What about, ‘There is no ex post facto law‘?”

Sorry there, chummy; that ain’t gonna help you.

Under Article I of the Constitution, sections 9 and 10, both Congress and the several states are prohibited from enacting ex post facto laws — that is, laws that prosecute acts that predate their enactment.  But an executive order, however written, is not law.  An order that simply relaxes enforcement will grant no protection once it’s been removed — the which, again, is merely a matter of time.

This is why, when repealing laws, we’re supposed to make Congress do it.

Unlike in previous instances of governing by Executive Order, I don’t believe the consequences are by design.  What I mean by that is that, usually, this sort of order is signed to force the next president to undo it, thereby taking a public stance against free speech or religious liberty or what have you — just one more step in the political dance.  But here, someone very evidently didn’t think things through.

And we’re going to have to pay for their mistake — literally: pay, and dearly.  It’s just a matter of time.

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