Back in May, Donald Trump signed an executive order supposedly weakening the Johnson Amendment. That’s the rule the forbids non-profit groups from endorsing candidates if they want to keep their tax exemptions. Which also means pastors can’t tell their congregations how to vote.

Trump said on the campaign trail he would eliminate the rule, which would, in effect, turn a lot of churches into nothing more than branches of the Republican Party.

This was Trump’s attempt to make it happen… but he didn’t have the power to repeal it by himself so the executive order lacked any real bite. It told the IRS to “not take any adverse action” against churches whose pastors played politics from the pulpit, but the reality was that the IRS wasn’t doing that to begin with. For reasons that included higher priorities elsewhere and an already overextended staff, they hadn’t revoked any tax exemptions even when pastors begged them to do it (so that they could sue the IRS and overturn the Johnson Amendment through the courts).

Trump’s order mostly formalized the IRS’ inaction. From a practical standpoint, it didn’t change much. But the wording was still a serious problem because Trump was telling the IRS not to enforce the law. He sent the message to churches that endorsing candidates from the pulpit was perfectly fine, and that they should go ahead and do it if they wanted to. They wouldn’t suffer any consequences.

In a way, that amounted to religious favoritism on the part of the government. Trump was giving churches permission to tell members how to vote, but non-profit groups like the Freedom From Religion Foundation which cater to atheists were still forbidden from doing the same thing.

Here’s what the original executive order said, in case you need a reminder:

In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.

“From a religious perspective.” It seems pretty damn obvious that Trump wasn’t referring to atheist groups or secular non-profits there.

That’s why FFRF filed a lawsuit against the Trump administration the same day as that signing ceremony.

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. … 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.

Technically speaking, FFRF was challenging the order on the grounds that it violated both the Establishment Clause and the Due Process Clause of the Constitution. They also said Trump acted “in excess of presidential authority under Article II of the Constitution.”

I should mention that the ACLU was prepared to sue Trump over the executive order as well, but they eventually backed out, saying that the executive order was nothing more than an “elaborate photo-op with no discernible policy outcome.” Because it didn’t change the law, there was nothing to sue over. But FFRF was saying the threat of change, and the way Trump went about selectively deciding which groups the law would and wouldn’t apply to, was problematic enough.

Yesterday, the federal government responded to FFRF’s lawsuit, urging the courts to dismiss the challenge.

In court filings, the Justice Department said the executive order does not alter existing law and called the group’s claims baseless. Trump’s order “merely directs that the government not take adverse action against religious organizations that it would not take against other organizations in the enforcement of the restrictions,” the Justice Department wrote.

It’s somewhat entertaining to see the Justice Department say Trump’s executive order doesn’t do anything since Trump’s entire speech that day was all about how this would finally give pastors the freedom they desired. But the bigger point is that the government believes FFRF has no business bringing forth this lawsuit:

The allegations in the complaint provide no reason to believe that the Executive Order will be implemented in a way that treats the plaintiffs unfavorably or causes them any harm. Consequently, the plaintiffs cannot establish an “actual or imminent” injury as required by Article III of the Constitution. … None of the remarks made by the President suggest that the Executive Order grants an exemption to religious organizations while denying the same benefit to secular organizations. And the plaintiffs do not allege that the Internal Revenue Service (IRS) has taken any action to implement the Executive Order in a way that exempts religious organizations from the political campaign activity restrictions of § 501(c)(3).

In short: The order isn’t really giving religious groups a special benefit, the atheists would also get to play politics without losing their tax exemptions, and the IRS hasn’t even done anything about this yet!

They want FFRF to go away on the basis that Trump lied about the power of his own executive order

The government’s response goes on to say that, even if the courts don’t dismiss the lawsuit, they should rule against FFRF because it’s not like FFRF told members how to vote and had their tax exemption revoked.

… the plaintiffs’ complaint does not allege that they ever asked for the benefit of the same exemption. Because they never sought similar treatment for themselves, the plaintiffs cannot claim to have been denied equal treatment and therefore cannot establish that they have suffered any injury.

The government is essentially saying FFRF should play with fire and get burned before pursuing any case against them. FFRF, knowing what happens when you play with fire, would rather everyone just play by the rules and not go near it. While “injury” is important for standing in these lawsuits, you don’t need to be personally harmed first. FFRF says this lawsuit would hurt them because Trump is creating a different set of rules between churches and other non-profits.

We’ll find out soon enough if the courts accept that argument. but for now, just remember that the government wants this lawsuit to go away, and the argument they’re using is that Trump’s executive order — which he hyped as a matter of religious freedom and for which he even held a public signing ceremony — doesn’t do anything meaningful.

(Portions of this article were published earlier)

