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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN
FREEDOM FROM RELIGION FOUNDATION, INC., DAN BARKER AND ANNIE LAURIE GAYLOR, CO-PRESIDENTS OF FFRF,
Plaintiff,

v.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES; and JOHN KOSKINEN, COMMISSIONER OF THE INTERNAL REVENUE SERVICE,
Defendants.

Case No. 17-CV-330

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. President Trump signed on May 4, 2017, an Executive Order (“EO”) ostensibly meant to “vigorously enforce Federal law’s robust protections for religious freedom,” but which actually privileges religion over nonreligion. 2. The EO, in particular, requires the Internal Revenue Service (“IRS”), under direction of the Commissioner of the IRS, John Koskinen, “to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit,” according to the President when announcing his Order. 3. Among many faults, the EO requires the IRS to selectively and preferentially discontinue enforcement of the electioneering restrictions of the tax code against churches and religious organizations, while applying a more vigorous enforcement standard to secular nonprofits.

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4. The official White House Twitter account further describes the EO as having
the intended effect of “stopping the IRS from revoking a church’s or nonprofit’s tax-exempt
status if it chooses to support a political cause.”
5. During the signing ceremony, which occurred on the National Day of Prayer,
President Trump further emphasized that the EO is meant to literally undue the Johnson
Amendment or signal that the IRS will not enforce the Johnson Amendment against churches
and religious organizations:
No American should be forced to choose between the dictates of the federal government and the tenets of their faith. As I campaigned across the country, faith leaders explained that they were prevented from speaking their minds because of a 1954 rule known as the Johnson Amendment, I spoke about it a lot. Under this rule, if a pastor, priest, or imam speaks about issues of public or political importance they are threatened with the loss of their tax-exempt status. A crippling financial punishment--very very unfair. But no longer. I promised to take action. . . . And to this end, this financial threat against the faith community is over. In just a few moments I will be signing an executive order to follow through on that pledge and to prevent the Johnson Amendment from interfering with your First Amendment rights--and you’re the people I want to listen to. . . . You’re now in a position where you can say what you want to say.
6. Thus, according to President Trump, the EO is meant to effect a significant
change in the status quo:
For too long the federal government has used the power of the state as a weapon against people of faith, bullying and even punishing Americans for following their religious beliefs -- it’s been happening. That is why I am signing, today, an executive order to defend the freedom of religion and speech in America, the freedoms that we’ve wanted, the freedoms that you’ve fought for so long and we are doing it in just a little while, right over here.
7. President Trump also made clear in his remarks that this EO is only meant to
benefit religious groups, and specifically churches:
This executive order directs the IRS not to unfairly target churches and religious organizations for political speech. No one should be censoring sermons or targeting pastors. In America we do not fear people speaking freely from the pulpit, we embrace it. . . . Under
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my administration, free speech does not end at the steps of a cathedral or synagogue or any other house of worship, we are giving our churches their voices back—we are giving them back in the highest form. With this EO we also make clear that the federal government will never ever penalize any person for their protected religious beliefs. 8. The President’s EO attempts to do something for which he has no constitutional authority: selectively veto a legitimate statute that Congress passed and the President signed into law more than 50 years ago. 9. The President proclaimed his intention to self-legislate at the National Prayer Breakfast, on February 2 of this year, boasting that “I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.” 10. The Plaintiffs seek a declaration under 28 U.S.C. §2201 that Defendants, in issuing and obeying this EO, violate the Establishment Clause of the First Amendment to the Constitution of the United States. 11. The Defendant’s actions also violate the Plaintiffs’ Equal Protection and Free Speech rights. 12. Finally, the President also lacks any enumerated or implied power to overturn a legitimate law and his attempt to do so violates the Take Care Clause of the United States Constitution. 13. Plaintiffs request the Court to enjoin the Defendant Koskinen from implementing President Trump’s EO compelling selective and preferential non-enforcement of the electioneering restrictions against churches and religious organizations. 14. The Plaintiffs also request the Court to order the Defendants to neutrally enforce the restrictions in Internal Revenue Code §501(c)(3) against churches and religious
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organizations, including the electioneering restrictions, consistent with the same enforcement standards applied to secular non-profit organizations.
JURISDICTION AND VENUE 15. This Court has federal question jurisdiction pursuant to 28 U.S.C. §1331 with respect to the relief sought against the Defendants. 16. The Court also has the authority to issue a declaratory judgment under 28 U.S.C. §2201. The Court further has the authority to award injunctive relief under 28 U.S.C. §1443 and Fed. R. Civ. P. 65. 17. The United States has waived sovereign immunity, pursuant to 5 U.S.C.§702, for actions that seek specific relief other than money damages, as in this case. 18. Venue is appropriate in the District Court for the Western District of Wisconsin pursuant to 28 U.S.C. §1391(e), where FFRF has its principal office.
PARTIES 19. Plaintiff FFRF is a tax-exempt non-profit organization under §501(c)(3) of the Internal Revenue Code, and as such, FFRF must and does abide by the electioneering restrictions of §501(c)(3). 20. Plaintiff FFRF is a non-profit membership organization that advocates for the separation of church and state and educates on matters relating to nontheism; FFRF, in fact, successfully challenged the constitutionality of the National Day of Prayer, in a decision by the District Court for the Western District of Wisconsin, which was later vacated on grounds of standing, but not on the merits. 21. The Plaintiff has more than 28,000 members, residing in every state of the United States, including more than 1,400 in Wisconsin, as well as members in the District of Columbia.
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22. FFRF represents and advocates on behalf of its members throughout the United States.
23. FFRF’s membership includes individuals who are federal taxpayers who are opposed to government preferences and favoritism toward religion.
24. Plaintiff Annie Laurie Gaylor is a Lifetime Member of, and Co-President of FFRF, and she is a rational and recognized spokesperson for FFRF.
25. Plaintiff Dan Barker also is a Lifetime Member of, and Co-President of FFRF, and he too is a rational and recognized spokesperson for FFRF.
26. Plaintiff FFRF previously settled a lawsuit against the IRS for its failure to enforce the electioneering restrictions, in 2014, whereby the IRS duly assured appointment of authorized personnel to enforce those restrictions. FFRF then voluntarily dismissed that case, which was pending in the Eastern District before Judge Adelman. See Plaintiff’s Memorandum in Support of Motion to Dismiss, FFRF v. Koskinen, No. 12-0818 (July 29, 2014).
27. The Defendant Donald J. Trump is the President of the United States with a principal address of 1600 Pennsylvania Ave., Washington, D.C., 20006; Defendant Trump is sued in his official capacity.
28. The Defendant Josh Koskinen is the Commissioner of the Internal Revenue Service, with a principal address of 1111 Constitution Avenue N.W., Washington, D.C. 20224; the Defendant Koskinen is sued in his official capacity.
LEGAL BACKGROUND 29. The Establishment Clause of the First Amendment to the United States Constitution prohibits governmental preference for, endorsement of, and discrimination in favor of religion.
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30. Section 501(c)(3) of the Tax Code prohibits all non-profit organizations, including churches and other religious organizations, from intervening in political campaigns as a condition of their tax-exempt status.
31. The electioneering restrictions of § 501(c)(3), known as the Johnson Amendment, were enacted by a Republican Congress and signed in law by President Eisenhower, also a Republican, in 1954.
32. Under the Johnson 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.
33. All organizations, including churches and religious organizations, that are exempt from federal income tax under §501(c)(3) of the Tax Code are prohibited from participating or intervening, directly or indirectly, in political campaigns on behalf of or in opposition to any candidate for elective public office.
34. The restrictions of §501(c)(3) on electioneering activities do not preclude discussions of issues that are not linked to support for or opposition to candidates; the fact that candidates may align themselves on one side or another of an issue does not restrict the ability of religious organizations or any other (c)(3) nonprofits from to engage in discussions of that issue.
35. A discussion of issues violates the electioneering restrictions of §501(c)(3) only if the discussion contains overt or tacit support for or opposition to a particular candidate.
36. Factors relevant to determining whether an advocacy communication constitutes impermissible campaign intervention include: (a) whether the communication identifies one or more candidates for a public office; (b) whether the communication expresses approval or disapproval of one or more candidates’ positions and/or actions; (c)
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whether the communication is delivered close in time to an election; (d) whether the statement makes reference to voting or an election; and (e) whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office. I.R.S. Fact Sheet FS-2006-17, February 2006, “Election Year Activities and the Prohibition on Political Campaign Intervention for Section 501(c)(3) Organizations.”
37. The electioneering prohibition of §501(c)(3) applies, as adopted by Congress, even-handedly to tax-exempt organizations, including churches and religious organizations, and to the actions of individuals, including clergy or other religious leaders, acting as representatives of tax-exempt organizations; the prohibition of §501(c)(3) does not apply to the political activities of clergy or other religious leaders undertaken in their individual capacities.
38. The Internal Revenue Service follows special procedures before commencing inquiries about potential violations of §501(c)(3) by a church or religious organization.
39. The IRS may initiate a tax inquiry of a church or religious organization if a high- ranking IRS official documents in writing the acts and circumstances, including potential violations of the electioneering prohibition, that lead the official to reasonably believe that the Church may have violated the requirements for tax exemption under §501(c)(3).
40. Until FFRF commenced suit against the IRS in 2014, no authorized official had been appointed.
41. According to an evangelical polling group, Lifeway Research, whose slogan is “Biblical Solutions for Life,” nearly 80% of Americans say it’s inappropriate for pastors to endorse a candidate in church and 75% do not believe it is appropriate for churches to publicly endorse candidates. Lifeway Research, “American Views on Candidate Endorsements and Tax Exemption,” (2015) available at http://bit.ly/2p8Anyt.
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FACTS: DONALD TRUMP ON THE JOHNSON AMENDMENT 42. President Trump has made clear in multiple statements his intention to overturn the Johnson Amendment as it applies to churches. 43. In a closed-door meeting with “hundreds of Christian conservatives” on June 21, 2016, President Trump spoke about the Johnson Amendment in audio that was leaked to the Washington Post. The audience was almost exclusively Christian: “The audience included leaders and founders of many segments of the Christian Right, the evangelical movement that began in the 1970s under people including the late Jerry Falwell. Among those present and involved in the program Tuesday were Focus on the Family founder James Dobson (who is no longer with that group), former Christian Coalition head Ralph Reed and evangelist Franklin Graham (son of evangelical icon Billy Graham).” Michelle Boorstein and Julie Zauzmer, “Thrilling Christian conservative audience, Trump vows to lift ban on politicking, appoint antiabortion judges,” The Washington Post (June 22, 2016) available at http://wapo.st/1sNMD8W. See the full transcript at, Jon Ward, “Transcript: Donald Trump’s closed-door meeting with evangelical leaders,” Yahoo News (June 22, 2016) at https://yhoo.it/2pFclfl. 44. President Trump told this group of Christians, “The government has gotten so involved in your religion. Especially your religion, that it makes it very difficult. . . . You really don’t have religious freedom, if you really think about it, because when President Johnson had his tenure, he passed something that makes people very, very nervous to even talk to preserve their tax-exempt status. And it’s taken a lot of power away from Christianity,” adding as an afterthought, “and other religions.” [Note: The italicized emphasis appears in the original transcript. Contrary to the above, President Eisenhower signed the Johnson Amendment into law; it was proposed and named after Lyndon Johnson, then a United States Senator.]
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45. President Trump also told this group that he attributes the decline of Christianity in America to the Johnson Amendment, which he will get rid of. He told a story he reiterated many times: “We were at a meeting of 50 ministers, pastors, Christians, two rabbis. I said, ‘Why is it that the whole thing with Christianity, it’s not going in the right direction? It’s getting weaker, weaker, weaker from a societal standpoint?’ And over the course of various meetings, I realized that there are petrified ministers and churches. . . . [W]hen it comes to talking about it openly or who they support or why they support somebody because he’s a person — a man or a woman — who is into their values, they’re petrified to do it. And I couldn’t get the answer. And then one day, at one of our meetings, somebody said, ‘They’re petrified of losing their tax-exempt status.’ And I said, ‘What is that all about?’ And they went into it. It was what happened during the Johnson [Eisenhower] administration. . . . And we are going to get rid of that, because you should have the right to speak.”
46. In that same meeting, President Trump said that overturning the Johnson Amendment “will be my greatest contribution to Christianity,” again adding as an afterthought, “and other religions.”
47. President Trump clarified that he was going to get rid of the Johnson Amendment to help stem the decline of American Christianity: “And we have to get rid of that, and if we don’t, I really think you’re going to have a continuing spiral. And I don’t want to see that, because I’ve been a Christian and I love Christianity. And the evangelicals have been so incredibly supportive.”
48. Promising to overturn the Johnson Amendment as a reward or benefit to American Christians while adding other religions as an afterthought is a message President Trump repeats regularly.
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49. In his acceptance speech at the Republican Convention, President Trump again singled out one particular sect of Christianity, evangelicals, and characterized the Johnson Amendment as an attack on that particular Christian sect: “At this moment, I would like to thank the evangelical and religious community in general who have been so good to me and so supportive. You have much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits. An amendment, pushed by Lyndon Johnson, many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views. I am going to work very hard to repeal that language and protect free speech for all Americans.”
50. When President Trump introduced Mike Pence as his running mate on July 16, 2016, he also singled out evangelicals as the beneficiary of his attack on the Johnson Amendment: “And what we’re doing—and what we’re doing that I’m so proud of, so proud—and nobody else would even think about doing it— I fought very hard for it. We’ll call it the Johnson amendment, where he took away from the evangelicals—and I want to thank the evangelicals, because without the evangelicals, I could not have won this nomination. The evangelicals have been unbelievable. I dominated with the evangelicals. . . . And I said—and I said for the evangelicals, that we’re going to do something that nobody’s even tried to do. You have the Johnson amendment passed by [drafted by] Lyndon Johnson and his group. . . . the Johnson amendment, where you are just absolutely shunned if you’re evangelical, if you want to talk religion, you lose your tax-exempt status. We put into the platform, we’re going to get rid of that horrible Johnson amendment. And we’re going to let evangelicals—we’re going to let Christians and Jews and people of religion—talk without being afraid to talk.”
51. At the Family Research Council’s 11th Annual Values Voter Summit on September 9, 2016, President Trump again clarified that his desire to end the Johnson
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Amendment is tied to helping Christian churches: “The first thing we have to do is give our churches their voice back. It’s been taken away. The Johnson amendment has blocked our pastors and ministers and others from speaking their minds from their own pulpits. If they want to talk about Christianity, if they want to preach, if they want to talk about politics, they’re unable to do so. If they want to do it, they take a tremendous risk that they lose their tax-exempt status. . . . And I will repeal the Johnson amendment if I am elected your president, I promise. So important.”
52. President Trump told the Summit that repealing the Johnson Amendment will help boost Christianity and other religions “like a rocket ship”: “If I become president, we are going to knock out the Johnson amendment. We are going to do that. . . . And I actually believe that’s one of the reasons why you haven’t seen Christianity and other religions within the United States going like a rocket ship—like our polls have been going in the last four weeks, a rocket ship, right? I really believe that, because you’re great people. The people that you rely on on Sunday and all during the week, they’ve been stopped from talking and speaking by a law. And we’re going to get rid of that law and it’s going to get rid of – we’re going to get rid of it so fast.”
53. President Trump again linked his vendetta against the Johnson Amendment to his support of Christianity in his October 3, 2016 remarks to a veterans group in Herndon, Virginia, “So one of the things I’m gonna do and I have tremendous support with the evangelicals and with the Christians and with everybody, is we’re going to get rid of the Johnson Amendment that is very, very unfair, OK.”
54. President Trump further proclaimed his intent to repeal the Johnson Amendment in order to benefit Christian leaders in a speech to African-American voters at the New Spirit Revival Center in Cleveland on September 21, 2016: “I pledge to you we’re going to end the Johnson Amendment, which takes away the voice of your pastors, your
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minister, your great leaders. It takes away their voice. We’re going to end quickly— quickly—the Johnson Amendment.”
55. President Trump also was very explicit about helping Christianity gain power by overturning the Johnson Amendment when addressing a group of pastors in Orlando Florida on August 11, 2016, telling the pastors: “You should be far more powerful. And if you look what’s happened to religion, if you look at what’s happening to Christianity, and you look at the number of people going to churches—and evangelicals know this also—it’s not on this kind of a climb [gesturing to indicate increasing], it’s on this kind of a climb [gesturing to indicate decreasing]. Slow and steady in the wrong direction and a lot of it has to do with the fact that you’ve been silenced. You’ve been silenced, like a child has been silenced.” He continued, asking these pastors to tell everyone of his goal to repeal the Johnson Amendment, reiterating the huge benefit for evangelicals in particular: “I hope you can spread the word, this will be so great for religion, but it will be so great for the evangelicals, for the pastors, for the ministers, for the priests, for America, for America. You know, they took away your voice. . . . We’ll be able to terminate the Johnson amendment. And you’ll have great power to do good things. And religion will start going instead of this way [gesturing to indicate decreasing]–I mean, Christianity, when you think of what’s happening, you look at the numbers. I talk about Sunday school and people don’t even know what I’m talking about anymore. It’s true. They don’t know what I’m talking about. When you look—instead of going this way [gesturing to indicate decreasing], you’re going to be going this way. [gesturing to indicate increasing] You may be going this way [gesturing to indicate steeply increasing]. But you’re going to be going—we’re going to bring it back because it’s a good thing. It’s a good thing.”
56. President Trump promised to these pastors that evangelicals would be rewarded after the election, again adding other religions as an afterthought: “If we get the
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evangelicals, we get the different people that are represented by you. . . .You’re never going to have a chance again, 501(c)(3), termination for yourselves. Open speech, you can talk freely about who you like, think of that. You can have your people having—I mean dialogue within the churches and temples and whatever it may be, you can have actually dialogue, talk about who you want. It’s never going to happen again folks. . . . we will win. And you will see things happen with—for the evangelicals. You will see things happen that you wouldn’t believe. And—and, you know, really, most importantly, for religion, you’re going to see things happen, for religion. All religions.”
57. President Trump has consistently mischaracterized the very nature of the electioneering restriction established by the Johnson Amendment in an effort to garner support with evangelical voters.
58. The Johnson Amendment, in fact, does not prevent religious leaders, churches, or religious nonprofits from speaking on political issues, but merely prevents them from campaigning in elections on behalf of politicians, which the law also requires secular nonprofit organizations to refrain from doing.
59. At the National Prayer Breakfast, on February 2, 2017, Trump vowed to “get rid of and totally destroy the Johnson Amendment,” as applied to churches and religious organizations.
FACTS: THE EXECUTIVE ORDER 60. On the National Day of Prayer, May 4, 2017, President Trump signed an EO ordering the Secretary of the Department of the Treasury to selectively and preferentially impose a policy and practice of non-enforcement by the IRS of the § 501(c)(3) electioneering restrictions of the Internal Revenue Code against churches and religious organizations. 61. The EO seeks to fulfill President Trump’s promise made at the National Prayer Breakfast to “totally destroy the Johnson Amendment.”
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62. The President’s EO is intended to literally and by stage whisper exempt churches and religious organizations from electioneering restrictions, but continues to impose them on secular and nonreligious 501(c)(3)s.
63. Section Two of the EO, “Respecting Religious and Political Speech,” requires that all executive department and agencies “to the greatest extent practicable” respect and protect the freedom of persons and organizations to engage in religious and political speech.
64. Section Two further explains that “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.”
65. The EO, with the President’s annotated interpretation and construction, makes clear that a relaxed and differential standard of enforcement of § 501(c)(3)’ electioneering restrictions shall be applied to churches and religious officials.
66. The IRS is an administrative agency within the Department of the Treasury, and the Defendant Koskinen, as Commissioner of the IRS, shall be responsible for implementing a selective and preferential standard of non-enforcement of electioneering restrictions as to churches and church officials.
67. The EO not only directs a relax standard of enforcement in regard to churches and religious organizations, but also conveys the intended impression that the Government is actively sending a message to Christians, and particularly evangelicals, that the IRS will no longer enforce the Johnson Amendment against them, thereby encouraging electioneering by
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churches and church officials, to the detriment of secular non-profit groups that are still held to a more rigorous standard of enforcement.
68. The Plaintiff FFRF, for its part, would be seriously harmed by enforcement of the electioneering restrictions if it violated § 501(c)(3), including by loss of tax-exempt status, which harm to FFRF would be devastating and irreparable.
69. The Defendant Koskinen, as the Commissioner of the IRS, is obligated to comply with President Trump’s EO.
70. The Plaintiff FFRF, including by its co-Presidents Annie Laurie Gaylor and Dan Barker, would engage in speech prohibited by the electioneering restrictions of § 501(c)(3) if a neutral policy of non-enforcement applied to secular non-profits as well as to churches and other religious organizations.
71. The Plaintiffs, however, face a reasonable and credible threat of selective enforcement of the electioneering restrictions of § 501(c)(3) if they violate the law, based on IRS pronouncements of required compliance and enforcement policy, as well as President Trump’s recognition of the restrictions as otherwise being real and effective.
72. The Internal Revenue Service, under the direction of Defendant Koskinen and under President Trump’s new EO, is required to follow a selective and preferential policy of non-enforcement of the electioneering restrictions of §501(c)(3) against churches and other religious organizations.
73. As a result of President Trump’s EO, churches and religious organizations will be able to blatantly and deliberately flaunt the electioneering restrictions of §501(c)(3), including during the upcoming 2018 elections, unlike secular non-profits, including FFRF.
74. The non-enforcement of the electioneering restrictions of §501(c)(3) against churches and other religious organizations constitutes preferential treatment of churches and
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religious organizations that is not provided to other tax-exempt organizations, including FFRF, which are required to comply with the electioneering restrictions of §501(c)(3).
75. Plaintiffs face a real and credible threat of enforcement of the Johnson Amendment strictures as a secular nonprofit that is not covered under the EO, and as a result their speech is reasonably chilled.
76. The selective non-enforcement of §501(c)(3) as to churches and religious organizations provides preferential treatment that is not neutrally available to other taxexempt organizations, including the Plaintiff FFRF in this case.
77. If FFRF were to endorse a political candidate it would risk losing its taxexempt status under §501(c)(3), which would cripple fundraising and expose FFRF to potential tax liabilities.
78. The intended non-enforcement of §501(c)(3) as to churches and other religious organizations by the IRS, as a result of this EO, will directly benefit churches and religious organizations, while discriminating against other non-profit organizations, including the Plaintiff FFRF, solely on the basis of religious criteria.
79. President Trump’s EO effectively amends §501(c)(3) and provides preferential treatment that is not neutral and generally applicable to all tax-exempt organizations.
80. The EO’s policy of selective non-enforcement of the electioneering restrictions of §501(c)(3) as to churches and religious organizations violates the Establishment Clause of the First Amendment.
81. The intended policy of selective non-enforcement of electioneering restrictions against churches and other religious organizations was designed and intended for the purpose of advancing the interests of churches and religious organizations above the interests of similarly situated nonreligious organizations, by allowing the former to engage in electioneering activities while the latter cannot. It is also intended to favor Christianity as the
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majority religion over other religions and evangelical Christianity as a voting bloc Trump depended on over other Christian sects.
82. The intended policy of selective non-enforcement of electioneering restrictions against churches and other religious organizations has the effect of providing a unique benefit to churches and religious organizations—the right to engage in electioneering activities while retaining 501(c)(3) tax exempt status.
83. President Trump’s EO also creates the appearance of government endorsement of churches and religious organizations and a preference for these religious organizations above similarly situated nonreligious organizations.
84. The intended preferential treatment of churches and other religious organizations results in obligations imposed on secular non-profits, including the Plaintiffs, that are not imposed on churches, which distinction arises exclusively from the application of religious criteria.
85. The Plaintiffs will be disadvantaged vis à vis churches and religious organizations by the EO’s intended result: the non-enforcement of the electioneering restrictions against churches and other religious organizations.
86. President Trump’s EO also violates the Equal Protection requirement of the Fifth Amendment to the United States Constitution, which discrimination is not justified by any non-proscribed rationale.
87. Churches and religious organizations obtain a significant benefit as a result of being exempt from income taxation, while also being able to preferentially engage in electioneering, which is something secular tax-exempt organizations cannot do, including FFRF, as a result the speech of secular non-profits, including FFRF, is selectively chilled in violation of free speech rights under the First Amendment.
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88. The preferential tax-exemption that churches and other religious organizations obtain, despite noncompliance with electioneering restrictions, amounts to more than $100,000,000,000 annually in tax-free contributions made to churches and religious organizations in the United States.
89. The policy and practice of non-enforcement of electioneering restrictions against churches and religious organizations mandated by this EO confer benefits solely on the basis of religious criteria, as to which the Plaintiff FFRF does not qualify solely because of the application of religious criteria.
90. Plaintiffs seek an order mandating that the enforcement policies of §501(c)(3) by the Defendant Koskinen not preferentially favor churches and religious organizations, thereby requiring a level playing field of neutral enforcement.
91. The intended policy of selective non-enforcement of electioneering restrictions against churches and other religious organizations has the effect of converting these organizations into unregulated political action committees, effectively excluding billions of dollars from taxation each year.
92. The tax benefits preferentially provided to churches and other religious organizations constitute an exclusive and discriminatory subsidy to religion in violation of the Establishment Clause of the First Amendment and the Equal Protection element of Fifth Amendment to the United States Constitution.
93. President Trump’s EO also selectively undermines enforcement of a duly enacted U.S. law, thereby violating his duties under the Take Care Clause, as well as violating the separation of powers; the President’s usurpation constitutes an ultra vires action for which he has no constitutionally delegated power to perform.
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94. President Trump is required to faithfully enforce the law, refuting “the idea that he is to be a lawmaker.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
WHEREFORE, Plaintiffs demand judgment as follows: a. Declaring that President Trump’s Executive Order violates the Constitution of
the United States by providing preferential treatment to churches; b. Declaring the Executive Order to be in violation of the Take Care Clause; and
to be in excess of Presidential authority under Article II of the Constitution; and to be an infringement on legislative authority in violation of the separation of powers; and to constitute an ultra vires act, and therefore the Executive Order is invalid;
c. Enjoining Defendant Koskinen from implementing President Trump’s Executive Order;
d. Awarding the Plaintiffs their reasonable costs and disbursements of this action as allowed by law; and
e. Awarding such other relief as the Court deems just and equitable. Dated this 4th day of May 2017.
BOARDMAN & CLARK LLP By /s/ Richard L. Bolton Richard L. Bolton Wisconsin State Bar No. 1012552 One South Pinckney Street, Ste. 410 Madison, WI 53701-0927 Telephone: (608) 257-9521 Facsimile: (608) 283-1709 Attorney for Plaintiffs rbolton@boardmanclark.com
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Case: 3:17-cv-00330-jdp Document #: 1 Filed: 05/04/17 Page 20 of 20 CERTIFICATE OF SERVICE
I certify that, on May 4, 2017, service of the foregoing was made upon all parties by filing it with the Clerk of Court using the CM/ECF system.
/s/ Richard L. Bolton
f:\docs\wd\26318\25\a2778842.docx
20

 
 Case: 3:17-cv-330 As of: 05/27/2018 09:40 AM CDT 1 of 5
U.S. District Court Western District of Wisconsin (Madison) CIVIL DOCKET FOR CASE #: 3:17−cv−00330−jdp

CLOSED

Freedom From Religion Foundation, Inc. et al v. Trump, Donald Date Filed: 05/04/2017

et al

Date Terminated: 12/14/2017

Assigned to: District Judge James D. Peterson

Jury Demand: None

Referred to: Magistrate Judge Stephen L. Crocker

Nature of Suit: 440 Civil Rights: Other

Cause: 42:1983 Civil Rights Act

Jurisdiction: Federal Question

Plaintiff

Freedom From Religion Foundation, Inc.

represented by Richard L. Bolton Boardman & Clark LLP 1 South Pinckney Street, 4th Floor P.O. Box 927 Madison, WI 53701−0927 608−283−1789 Fax: 608−283−1709 Email: rbolton@boardmanclark.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Dan Barker Co−President of FFRF

represented by Richard L. Bolton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Annie Laurie Gaylor Co−President of FFRF

represented by Richard L. Bolton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Donald Trump President of the United States
Defendant John Koskinen Commissioner of the Internal Revenue Service

represented by James C. Luh U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20530 202−514−4938 Email: James.Luh@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Luh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Pastor Charles Moodie

represented by Daniel Howard Blomberg Becket Fund for Religious Liberty

Case: 3:17-cv-330 As of: 05/27/2018 09:40 AM CDT 2 of 5

1200 New Hampshire Ave., N.W. Suite 700 Washington, DC 20036 202−349−7222 Fax: 202−955−0090 Email: dblomberg@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diana Verm The Becket Fund for Religious Liberty 1200 New Hampshire Ave. N.W. Suite 700 Washington, DC 20036 202−349−7225 Email: dverm@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Christopher Rassbach Becket Fund for Religious Liberty 1200 New Hampshire Ave., N.W. Suite 700 Washington, DC 20036 202−349−7214 Fax: 202−955−0090 Email: erassbach@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Pastor Koua Vang

represented by Daniel Howard Blomberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diana Verm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Christopher Rassbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Father Patrick Malone

represented by Daniel Howard Blomberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diana Verm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Christopher Rassbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant

Case: 3:17-cv-330 As of: 05/27/2018 09:40 AM CDT 3 of 5

Holy Cross Anglican Church

represented by Daniel Howard Blomberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diana Verm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Christopher Rassbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/04/2017
05/05/2017 05/05/2017 05/05/2017 06/20/2017 06/26/2017 06/28/2017 06/29/2017
06/29/2017 06/29/2017 06/29/2017 06/29/2017 06/29/2017

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0758−2019068.), filed by All Plaintiffs, (Attachments: # 1 JS−44 Civil Cover Sheet, # 2 Summons − Donald Trump, # 3 Summons − John Koskinen) (Bolton, Richard) (Entered: 05/04/2017)
Case randomly assigned to District Judge James D. Peterson and Magistrate Judge Stephen L. Crocker. (kwf) (Entered: 05/05/2017)
Standard attachments for District Judge James D. Peterson required to be served on all parties with summons or waiver of service: NORTC, Corporate Disclosure Statement. (kwf) (Entered: 05/05/2017)
2 Summons Issued as to Donald Trump. (Attachments: # 1 Summons Issued as to John Koskinen) (kwf) (Entered: 05/05/2017)
Action Requested: Counsel for plaintiff requested to promptly file proof of service. (kwf) (Entered: 06/20/2017)
3 Certificate of Service by Plaintiffs Dan Barker, Freedom From Religion Foundation, Inc., Annie Laurie Gaylor as to 1 Complaint, 2 Summons Issued. (Bolton, Richard) (Entered: 06/26/2017)
4 Notice of Appearance filed by James C. Luh for Defendants John Koskinen, Donald Trump. (Luh, James) (Entered: 06/28/2017)
5 Motion to Intervene by Intervenor Defendants Charles Moodie, Koua Vang, Patrick Malone, Holy Cross Anglican Church. Response due 7/6/2017. (Attachments: # 1 Proposed Answer, # 2 Proposed Order) (Verm, Diana) Modified on 6/30/2017: Added the Attorney To Be Noticed designation and regenerated NEFs to counsel. (lak) (Entered: 06/29/2017)
6 Brief in Support of 5 Motion to Intervene by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang. (Verm, Diana) (Entered: 06/29/2017)
7 Declaration of Pastor Charles Moodie filed by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang re: 5 Motion to Intervene. (Verm, Diana) (Entered: 06/29/2017)
8 Declaration of Pastor Koua Vang filed by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang re: 5 Motion to Intervene. (Verm, Diana) (Entered: 06/29/2017)
9 Declaration of Father Patrick Malone filed by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang re: 5 Motion to Intervene. (Verm, Diana) (Entered: 06/29/2017)
10 Corporate Disclosure Statement by Intervenor Defendant Holy Cross Anglican Church. (Verm, Diana) (Entered: 06/29/2017)

Case: 3:17-cv-330 As of: 05/27/2018 09:40 AM CDT 4 of 5

06/29/2017 06/29/2017 06/30/2017 07/03/2017 07/05/2017
08/22/2017 08/22/2017 08/22/2017 08/22/2017 08/22/2017 08/28/2017 08/31/2017 09/05/2017 09/06/2017 09/06/2017 09/07/2017

11 Notice of Appearance filed by Daniel Howard Blomberg for Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang. (Blomberg, Daniel) Modified on 6/30/2017: Added the Attorney To Be Noticed designation and regenerated NEFs to counsel. (lak) (Entered: 06/29/2017)
12 Notice of Appearance filed by Eric Christopher Rassbach for Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang. (Rassbach, Eric) Modified on 6/30/2017: Added the Attorney To Be Noticed designation and regenerated NEFs to counsel. (lak) (Entered: 06/29/2017)
13 Motion for Extension of Time to Respond to Motion to Intervene by Defendants John Koskinen, Donald Trump. Motions referred to Magistrate Judge Stephen L. Crocker. Response due 7/7/2017. (Luh, James) (Entered: 06/30/2017)
14 Brief in Opposition by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang re: 13 MOTION for Extension of Time filed by Donald Trump, John Koskinen. (Blomberg, Daniel) (Entered: 07/03/2017)
15 ** TEXT ONLY ORDER ** Defendants' motion for an extension of time (dkt. 13 ) is GRANTED over the opposition of the proposed intervenors (dkt. 14 ). Brief in Opposition due 8/22/2017. Signed by Magistrate Judge Stephen L. Crocker on 7/5/2017. (kwf) (Entered: 07/05/2017)
16 MOTION TO DISMISS for Lack of Subject Matter Jurisdiction or for Failure to State a Claim by Defendants John Koskinen, Donald Trump. Brief in Opposition due 9/12/2017. Brief in Reply due 9/22/2017. (Luh, James) Modified on 8/22/2017. (lak) (Entered: 08/22/2017)
17 Brief in Support of 16 Motion to Dismiss for Lack of Subject Matter Jurisdiction or for Failure to State a Claim by Defendants John Koskinen, Donald Trump. (Luh, James) Modified on 8/22/2017. (lak) (Entered: 08/22/2017)
18 Brief in Opposition by Defendants John Koskinen, Donald Trump re: 5 Motion to Intervene, filed by Koua Vang, Charles Moodie, Holy Cross Anglican Church, Patrick Malone. (Luh, James) Modified on 8/23/2017. (lak) (Entered: 08/22/2017)
19 MOTION TO DISMISS by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang. Brief in Opposition due 9/12/2017. Brief in Reply due 9/22/2017. (Blomberg, Daniel) (Entered: 08/22/2017)
20 Brief in Support of 19 Motion to Dismiss by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang. (Blomberg, Daniel) (Entered: 08/22/2017)
Set Telephone Pretrial Conference: Telephone Pretrial Conference set for 10/4/2017 at 01:00 PM before Magistrate Judge Stephen L. Crocker. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5153. [Standing Order Governing Preliminary Pretrial Conference attached] (voc) (Entered: 08/28/2017)
21 Brief in Reply by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang in Support of 5 Motion to Intervene. (Blomberg, Daniel) (Entered: 08/31/2017)
22 Unopposed Motion to Stay Pretrial Conference by Defendants John Koskinen, Donald Trump. (Luh, James) Modified on 9/6/2017. (lak) (Entered: 09/05/2017)
23 ** TEXT ONLY ORDER ** ORDER granting 22 Unopposed Motion to Stay Pretrial Conference. Signed by Magistrate Judge Stephen L. Crocker on 9/6/2017. (kwf) (Entered: 09/06/2017)
24 Unopposed Motion for Extension of Time by Plaintiffs Dan Barker, Freedom From Religion Foundation, Inc., Annie Laurie Gaylor. Motions referred to Magistrate Judge Stephen L. Crocker. (Bolton, Richard) (Entered: 09/06/2017)
25 ** TEXT ONLY ORDER ** ORDER granting 24 Motion for Extension of Time. Brief in Opposition due 9/19/2017. Brief in Reply due 9/29/2017. Signed by Magistrate Judge Stephen L. Crocker on 9/7/2017. (kwf) (Entered: 09/07/2017)

Case: 3:17-cv-330 As of: 05/27/2018 09:40 AM CDT 5 of 5

09/19/2017 09/20/2017
09/21/2017 09/26/2017 09/27/2017 11/01/2017 11/01/2017 11/09/2017 11/09/2017 11/09/2017 11/09/2017 11/28/2017 11/28/2017 12/13/2017 12/14/2017

26 AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants, filed by All Plaintiffs. (Bolton, Richard) (Entered: 09/19/2017)
27 ** TEXT ONLY ORDER ** Plaintiff Freedom From Religion Foundation, Inc., has filed an amended complaint, Dkt. 26 , which appears to address some of the issues in defendants' pending motions to dismiss, Dkt. 16 and Dkt. 19 . Accordingly, the court will DENY defendants' motions to dismiss as moot. Defendants may file new motions directed to the amended complaint. Signed by District Judge James D. Peterson on 9/20/2017. (kwf) (Entered: 09/20/2017)
28 Unopposed Motion for Extension of Time to Respond to Amended Complaint by Defendants John Koskinen, Donald Trump. Motions referred to Magistrate Judge Stephen L. Crocker. (Luh, James) (Entered: 09/21/2017)
29 Notice of Supplemental Authority by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang re: 5 Motion to Intervene. (Blomberg, Daniel) (Entered: 09/26/2017)
30 ** TEXT ONLY ORDER ** ORDER granting 28 Motion for Extension of Time to Respond to Amended Complaint. Donald Trump and John Koskinen Answer due 11/2/2017. Signed by Magistrate Judge Stephen L. Crocker on 9/27/17. (kwf) (Entered: 09/27/2017)
31 Unopposed Motion for Extension of Time to Respond to Amended Complaint by Defendants John Koskinen, Donald Trump. Motions referred to Magistrate Judge Stephen L. Crocker. (Luh, James) (Entered: 11/01/2017)
32 ** TEXT ONLY ORDER ** ORDER granting 31 Motion for Extension of Time to Respond to Amended Complaint. Answer due 11/9/2017. Signed by Magistrate Judge Stephen L. Crocker on 11/1/2017. (kwf) (Entered: 11/01/2017)
33 MOTION TO DISMISS for Lack of Subject Matter Jurisdiction or for Failure to State a Claim by Defendants John Koskinen, Donald Trump. Brief in Opposition due 11/30/2017. Brief in Reply due 12/11/2017. (Luh, James) (Entered: 11/09/2017)
34 Brief in Support of 33 Motion to Dismiss for Lack of Subject Matter Jurisdiction or for Failure to State a Claim by Defendants John Koskinen, Donald Trump. (Luh, James) (Entered: 11/09/2017)
35 MOTION TO DISMISS Plaintiffs' Amended Complaint by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang. Brief in Opposition due 11/30/2017. Brief in Reply due 12/11/2017. (Blomberg, Daniel) (Entered: 11/09/2017)
36 Brief in Support of 35 Motion to Dismiss, by Intervenor Defendants Holy Cross Anglican Church, Patrick Malone, Charles Moodie, Koua Vang. (Blomberg, Daniel) (Entered: 11/09/2017)
37 Unopposed Motion for Extension of Time by Plaintiffs Dan Barker, Freedom From Religion Foundation, Inc., Annie Laurie Gaylor. Motions referred to Magistrate Judge Stephen L. Crocker. (Bolton, Richard) (Entered: 11/28/2017)
38 ** TEXT ONLY ORDER ** ORDER granting 37 Motion for Extension of Time by Plaintiffs. Brief in Opposition due 12/11/2017. Brief in Reply due 12/21/2017. Signed by Magistrate Judge Stephen L. Crocker on 11/28/2017. (voc) (Entered: 11/28/2017)
39 Notice of Voluntary Dismissal by Plaintiffs Dan Barker, Freedom From Religion Foundation, Inc., Annie Laurie Gaylor (Bolton, Richard) (Entered: 12/13/2017)
Pursuant to Fed. R. Civ. P. 41(a)(1), this case is closed without further order of the court. (kwf) (Entered: 12/14/2017)

 
 Case: 3:17-cv-00330-jdp Document #: 17 Filed: 08/22/17 Page 1 of 30

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

FREEDOM FROM RELIGION FOUNDATION, )

INC., et al.

)

)

Plaintiffs

)

)

v.

)

)

DONALD J. TRUMP, President, et al.

)

)

Defendants

)

Civil Action No. 17-cv-330

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION OR FOR FAILURE TO STATE A
CLAIM

Case: 3:17-cv-00330-jdp Document #: 17 Filed: 08/22/17 Page 2 of 30
TABLE OF CONTENTS PRELIMINARY STATEMENT...................................................................................................... 1 BACKGROUND ............................................................................................................................ 3
I. Statutory and Regulatory Background.................................................................... 3 II. Executive Order No. 13,798 ................................................................................... 5 III. The Present Lawsuit................................................................................................ 7 ARGUMENT .................................................................................................................................. 7 I. Standards Governing a Motion to Dismiss for Lack of Subject Matter Jurisdiction
................................................................................................................................. 7 II. The Plaintiffs Lack Standing Because They Have Not Alleged Facts to Establish
that the Executive Order Is Being Implemented in a Way that Treats Them Unfavorably Compared to Religious Organizations. .............................................. 9 A. The jurisdictional requirement of standing ................................................. 9 B. The plaintiffs have not alleged facts to support their generalized assertion
of discriminatory treatment under the Executive Order............................ 10 C. The plaintiffs have not made any request to be exempted from the political
campaign activity restrictions of § 501(c)(3) in the same way they claim religious organizations have been exempted under the Executive Order. 16 D. The plaintiffs cannot establish standing based on any other theory.......... 17 III. For Similar Reasons, the Plaintiffs’ Claims Are Not Ripe.................................... 21 IV. The Complaint Also Fails to State a Claim for Relief Because the Plaintiffs’ Allegations Do Not Suggest that the Executive Order Will Be Implemented in the Manner that the Plaintiffs Describe. ..................................................................... 22 CONCLUSION............................................................................................................................. 23
i

Case: 3:17-cv-00330-jdp Document #: 17 Filed: 08/22/17 Page 3 of 30
TABLE OF AUTHORITIES
CASES
Allen v. Wright, 468 U.S. 737 (1984).............................................................................................. 10
Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440 (7th Cir. 2009) ................................................................................... 8
Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) ........................................................................................ 18, 19
* Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................8, 9, 11
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)................................................................................................ 8
* Bldg. & Constr. Trades Dep’t v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002) ...........................................................................15, 23
Bob Jones Univ. v. Simon, 416 U.S. 725 (1974).............................................................................................. 20
Citizens for Appropriate Rural Rds. v. Foxx, 815 F.3d 1068 (7th Cir. 2016) ............................................................................... 21
Cleveland v. Comm’r, 600 F.3d 739 (7th Cir. 2010) (per curiam) ............................................................ 20
Corey H. v. Bd. of Educ., 534 F.3d 683 (7th Cir. 2008) ................................................................................. 22
Flight Attendants Against UAL Offset (FAAUO) v. Comm’r, 165 F.3d 572 (7th Cir. 1999) ................................................................................. 17
* Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815 (7th Cir. 2014)......................................................................13, 17, 18
Freedom from Religion Found., Inc. v. Nicholson, 536 F.3d 730 (7th Cir. 2008) ................................................................................. 18
Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011) ................................................................................. 18
Freedom from Religion Found., Inc. v. Shulman, 961 F. Supp. 2d 947 (W.D. Wis. 2013) ................................................................. 14
ii

Case: 3:17-cv-00330-jdp Document #: 17 Filed: 08/22/17 Page 4 of 30
Freedom from Religion Found., Inc. v. Zielke, 845 F.2d 1463 (7th Cir. 1988) ............................................................................... 18
* Gill v. City of Milwaukee, 850 F.3d 335 (7th Cir. 2017)..................................................................................12
Heckler v. Mathews, 465 U.S. 728 (1984).............................................................................................. 11
Hein v. Freedom from Religion Found., Inc., 551 U.S. 587 (2007).............................................................................................. 18
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977).............................................................................................. 19
Johnson v. U.S. Office of Pers. Mgmt., 783 F.3d 655 (7th Cir. 2015) ........................................................................... 13, 20
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ................................................................................................ 7
Lance v. Coffman, 549 U.S. 437 (2007) (per curiam) ......................................................................... 10
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)........................................................................................ 10, 23
* McCauley v. City of Chicago, 671 F.3d 611 (7th Cir. 2011) ..................................................................................12
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) .............................................................................................. 21
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867)................................................................................. 23
Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803 (2003).............................................................................................. 21
* Nat’l Treasury Employees Union v. Bush, 891 F.2d 99 (5th Cir. 1989)..............................................................................16, 23
Rock Energy Coop. v. Vill. of Rockton, 614 F.3d 745 (7th Cir. 2010) ........................................................................... 21, 22
Scott Air Force Base Props., LLC v. County of St. Clair, 548 F.3d 516 (7th Cir. 2008) ............................................................................... 8, 9
iii

Case: 3:17-cv-00330-jdp Document #: 17 Filed: 08/22/17 Page 5 of 30
Sierra Club v. Morton, 405 U.S. 727 (1972).............................................................................................. 19
* Silha v. ACT, Inc., 807 F.3d 169 (7th Cir. 2015)................................................................................8, 9
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976)................................................................................................ 19
Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422 (2007)................................................................................................ 8
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)................................................................................................ 20
Summers v. Earth Island Inst., 555 U.S. 488 (2009).............................................................................................. 19
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007)................................................................................................ 8
United States v. Salerno, 481 U.S. 739 (1987)........................................................................................ 15, 23
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982)........................................................................................ 17, 19
Warth v. Seldin, 422 U.S. 490 (1975).............................................................................................. 10
CONSTITUTIONAL PROVISIONS Equal Protection Clause, U.S. Const. amend. XIV, § 1 ...................................................... 7 Establishment Clause, U.S. Const. amend. I........................................................... 7, 17, 18 Free Speech Clause, U.S. Const. amend. I.......................................................................... 7 Take Care Clause, U.S. Const. art. II, § 3 ..................................................................... 7, 23 U.S. Const. art. III, § 2, cl. 1 ........................................................................................... 1, 9
FEDERAL STATUTES 26 U.S.C. § 501(c)(3)................................................................................................. passim 26 U.S.C. § 513................................................................................................................... 5 26 U.S.C. § 7428............................................................................................................... 20
iv

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26 U.S.C. § 7611 ............................................................................................................. 5, 7 Internal Revenue Code of 1954, 68A Stat. 1 ...................................................................... 4 Tax Anti-Injunction Act, 26 U.S.C. § 7421(a) .................................................................. 20 EXECUTIVE ORDERS Exec. Order No. 13,798, Promoting Free Speech and Religious Liberty, 82 Fed. Reg.
21,675 (May 4, 2017)..................................................................................... passim FEDERAL REGULATIONS
Treas. Reg. § 1.501(c)(3)-1(c)(3)........................................................................................ 4 FEDERAL RULES
Fed. R. Civ. P. 12(b)(6) ..................................................................................................... 22 OTHER AUTHORITIES
Freedom from Religion Found., Victory: FFRF, IRS settle suit over church politicking. 14 Rev. Rul. 2007-41, 2007-1 C.B. 1421................................................................................. 4 Tax Exempt & Gov’t Entities, Internal Revenue Serv., Pub. 1828, Tax Guide for
Churches & Religious Organizations (2015) .......................................................... 4
v

Case: 3:17-cv-00330-jdp Document #: 17 Filed: 08/22/17 Page 7 of 30
PRELIMINARY STATEMENT The plaintiffs’ challenge to the President’s May 4, 2017, Executive Order titled Promoting Free Speech and Religious Liberty1 should be dismissed because the plaintiffs misunderstand the Order’s purpose and effect. The Order does not exempt religious organizations from the restrictions on political campaign activity applicable to all tax-exempt organizations; rather, the Order directs the Government not to take adverse action against religious organizations that it would not take against other organizations in the enforcement of these restrictions. 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. The plaintiffs’ suit is founded on an assertion that the Executive Order exempts religious organizations from the restrictions on political campaign activity that are imposed by Internal Revenue Code § 501(c)(3), 26 U.S.C. § 501(c)(3), as a condition of tax-exempt status. According to the plaintiffs, by exempting religious organizations from the restrictions on political campaign activity, the Executive Order affords unfavorable treatment to nonreligious organizations such as the plaintiffs’ organization. This broad assertion is not supported by the text of the Executive Order, nor does the complaint contain any factual allegations to suggest that the Government interprets or will interpret the Executive Order in the manner the plaintiffs describe. The text of the Executive Order itself does not purport to exempt religious organizations from the political campaign activity provisions of § 501(c)(3), nor does it privilege religious organizations over secular
1 Exec. Order No. 13,798, 82 Fed. Reg. 21,675 (May 4, 2017).

Case: 3:17-cv-00330-jdp Document #: 17 Filed: 08/22/17 Page 8 of 30
organizations. Rather, section 2 of the Order merely directs the Government not to take adverse action against religious organizations that it would not take against other organizations in the enforcement of the § 501(c)(3) restrictions. 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).
The Supreme Court and the Seventh Circuit have held that, on a motion to dismiss, a bare assertion without further factual detail is not enough to establish that the Government has adopted a purportedly wrongful policy. Rather, the plaintiff must allege specific, concrete facts to demonstrate that the Government has actually adopted the disputed policy. In this case, the plaintiffs do not provide these necessary supporting allegations, and they cannot do so, because their assertions about the effect of the Executive Order are mistaken. Because the plaintiffs cannot establish that the Government has in fact relieved religious organizations from the restrictions of § 501(c)(3), the plaintiffs cannot claim to have suffered any kind of unfavorable treatment from being denied a similar exception. The plaintiffs therefore cannot establish the kind of “actual or imminent” injury that is needed to meet the jurisdictional requirement of standing. Because the plaintiffs seek to challenge a policy that does not exist, a ruling on the legality of a nonexistent policy would be an impermissible advisory opinion.
Even if the Court could look past this fatal flaw in the complaint, the plaintiffs would still lack standing for a second, independent reason: even if the Executive Order created some exemption for religious organizations from the restrictions of § 501(c)(3), the plaintiffs’ complaint does not allege that they ever asked for the benefit of the same exemption. Because
2

Case: 3:17-cv-00330-jdp Document #: 17 Filed: 08/22/17 Page 9 of 30
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 same factors favor dismissing the case on ripeness grounds. It is premature for the Court to consider a challenge to the Order when the Order has not been implemented or applied in a way that would provide specific facts for the Court to evaluate. Indeed, the plaintiffs are unlikely to ever suffer any harm under the Order.
While the Court should dismiss the case for lack of jurisdiction, the complaint also fails to state a claim for relief. The plaintiffs’ claims are based on the flawed notion that the Executive Order creates an exemption from the restrictions of § 501(c)(3) exclusively for religious groups. Because the Executive Order does not create any such exemption, the plaintiffs do not state any valid claim for relief.
Thus, this action should be dismissed. BACKGROUND
I. Statutory and Regulatory Background Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3), provides an
exemption from federal income tax for nonprofit organizations meeting certain requirements: (3) Corporations, and any community chest, fund, or foundation,
organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition . . . , or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in [26 U.S.C. § 501(h)]), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office. Id. § 501(c)(3).
3

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The exemption is available only to organizations that do not engage in political campaign activity. Id. (“which does not participate in, or intervene in . . . , any political campaign on behalf of (or in opposition to) any candidate for public office”). This restriction on political campaign activity, which was introduced in the Internal Revenue Code of 1954, § 501(c)(3), 68A Stat. 1, 163, is sometimes known as the “Johnson Amendment” (after then-Senator Lyndon Johnson). The restriction is absolute—to qualify for the § 501(c)(3) exemption, an organization may not participate or intervene in any political campaign for or against a candidate for public office. An organization that engages in such political campaign activity is considered an “action” organization and does not qualify for the § 501(c)(3) exemption. Treas. Reg. § 1.501(c)(3)-1(c)(3).
Activities that constitute participation or intervention in a political campaign on behalf of or in opposition to a candidate include, for example, written or oral statements on behalf of or in opposition to such a candidate. See id. § 1.501(c)(3)-1(c)(3)(iii). Whether an organization is participating or intervening, directly or indirectly, in any political campaign on behalf of or in opposition to any candidate for public office depends upon all of the facts and circumstances of each case. See Rev. Rul. 2007-41, 2007-1 C.B. 1421, 1421. The IRS has published revenue rulings and guidance to help taxpayers understand and comply with the terms of § 501(c)(3) and its implementing regulations. For example, Revenue Ruling 2007-41, published in 2007, describes 21 different factual situations and analyzes whether they amount to participation or intervention in a political campaign. Id. at 1422–26. The restrictions on political campaign activity are also among the subjects discussed in IRS Publication 1828, which provides guidance on numerous tax issues facing churches and religious organizations. See Tax Exempt & Gov’t
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Entities, Internal Revenue Serv., Pub. 1828, Tax Guide for Churches & Religious Organizations 7–18 (2015), https://www.irs.gov/pub/irs-pdf/p1828.pdf.
In § 7611 of the Internal Revenue Code, Congress prescribed procedures the IRS must follow before it may conduct an examination of a church. 26 U.S.C. § 7611 (originally enacted as Tax Reform Act of 1984, Pub. L. No. 98-369, § 1033(a), 98 Stat. 494, 1034). The IRS may initiate a “church tax inquiry” only if an appropriate high-level Treasury official reasonably believes that a church may not be exempt from tax or may be carrying on an unrelated trade or business. See id.; see also id. § 513 (unrelated trade or business). In addition, before beginning the church tax inquiry, the IRS must provide written notice to the church of the inquiry. See id. § 7611(a)(3). An examination of a church’s corporate and financial records may begin only after written notice of the examination has been provided and the church has been permitted to request a conference. See id. § 7611(b). After an examination, the IRS may determine that a church is not exempt from taxation or is not eligible to receive tax-deductible contributions, or the IRS may issue a notice of deficiency to the organization or, in certain cases, assess an underpayment of tax. See id. § 7611(d)(1). However, the IRS may make such a determination “only if the appropriate regional counsel . . . determines in writing that there has been substantial compliance with the requirements of this section and approves in writing of such revocation, notice of deficiency, or assessment.” Id. The provisions of § 7611 are applicable to any church tax inquiry—they are not limited to situations where a church is believed to have engaged in political campaign activity. II. Executive Order No. 13,798
On May 4, 2017, the President issued an Executive Order addressing religious liberty. Exec. Order No. 13,798, Promoting Free Speech and Religious Liberty, 82 Fed. Reg. 21,675 (May 4, 2017). The stated purpose of the Order is to “guide the executive branch in formulating
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and implementing policies with implications for the religious liberty of persons and
organizations in America, and to further compliance with the Constitution and with applicable
statutes and Presidential Directives.” Id.
Section 2 of the Order directs that, in enforcement of the tax laws, including the political
campaign activity provisions of Internal Revenue Code § 501(c)(3), the Government should not
take adverse action based on speech “from a religious perspective” that it would not take based
on speech “of similar character” that does not reflect a religious perspective:
Sec. 2. Respecting Religious and Political Speech. All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. 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. As used in this section, the term ‘‘adverse action’’ means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.
Exec. Order No. 13,798, § 2 (emphasis added).
The Order explicitly disclaims any intent to modify substantive law or grant any
enforceable legal rights. Section 2 twice specifies that it applies “to the extent permitted by law.”
Id. Subsection 6(b) specifies that the Order “shall be implemented consistent with applicable
law.” Id. § 6(b). Subsection 6(c) specifies that the Order “is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or entities, its officers, employees, or agents,
or any other person.” Id. § 6(c).
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III. The Present Lawsuit On May 4, 2017, the same day the Executive Order was issued, plaintiffs Freedom from
Religion Foundation, Inc. (FFRF), Dan Barker, and Annie Laurie Gaylor filed this action against the President and the Commissioner of the Internal Revenue Service. The plaintiffs assert that the Executive Order “requires the IRS to selectively and preferentially discontinue enforcement of the electioneering restrictions of the tax code against churches and religious organizations, while applying a more vigorous enforcement standard to secular nonprofits.” Compl. for Declaratory and Injunctive Relief ¶ 3, ECF No. 1. By doing so, the plaintiffs assert, the Executive Order violates the Free Speech Clause and the Establishment Clause of the First Amendment; the Equal Protection Clause; the Take Care Clause, U.S. Const. art. II, § 3; and the separation of powers. See, e.g., Compl. ¶¶ 10–12, 80, 86–87, 92–93; Compl. at 19 (requests for relief). The plaintiffs seek declaratory and injunctive relief against the Executive Order and its enforcement. Compl. at 19.
While the plaintiffs’ complaint makes mention of Internal Revenue Code § 7611, the provision establishing special procedures for church tax inquiries, see Compl. ¶¶ 38–39, the plaintiffs do not appear to be challenging that provision. Instead, their claims appear to focus exclusively on the Executive Order.
ARGUMENT I. Standards Governing a Motion to Dismiss for Lack of Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and a plaintiff seeking to invoke the jurisdiction of a federal court bears the burden of establishing that the court’s exercise of jurisdiction is within the bounds of the Constitution and is authorized by statute. See id.
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When a defendant raises an issue of subject matter jurisdiction, the court must resolve the jurisdictional issue before it proceeds to the merits of the plaintiffs’ claims. See, e.g., Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007) (“[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) . . . .” (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–102 (1998))); Scott Air Force Base Props., LLC v. County of St. Clair, 548 F.3d 516, 520 (7th Cir. 2008) (“[I]t is axiomatic that a federal court must assure itself that it possesses jurisdiction over the subject matter of an action before it can proceed to take any action respecting the merits of the action.” (quoting Cook v. Winfrey, 141 F.3d 322, 325 (7th Cir. 1998))).
When a defendant contends in a motion to dismiss that the facts alleged in the plaintiffs’ complaint are insufficient on their face to establish jurisdiction, the court generally does not consider materials outside the complaint in evaluating the motion. See, e.g., Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir. 2009) (“Facial challenges [to jurisdiction] require only that the court look to the complaint and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction.”); accord Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). However, the court may consider “documents incorporated into the complaint by reference[] and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
“[I]n evaluating whether a complaint adequately pleads” subject matter jurisdiction, the court applies “the same analysis used to review whether a complaint adequately states a claim,” including the “facial plausibility requirement” elucidated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Silha, 807
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F.3d at 173–74. This means the Court must examine whether the allegations of the complaint, “accepted as true,” contain “factual content that allows the court to draw the reasonable inference” that the case meets the requirements of subject matter jurisdiction. Id. at 173–74 (quoting Iqbal, 556 U.S. at 678). But the Court does not have to consider allegations that state only bare assertions or conclusions of law without supporting factual details. See id.; see also Iqbal, 556 U.S. at 678–79 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. . . . While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”); Iqbal, 556 U.S. at 681 (holding that “bare assertions” and “conclusory” allegations were “not entitled to be assumed true”).
If the allegations of the complaint are not sufficient to establish subject matter jurisdiction, the case must be dismissed; the Court cannot defer ruling on the motion to permit discovery or other further proceedings. See id. at 684–86 (holding that because the plaintiff’s complaint did not allege facts sufficient to meet the “facial plausibility” standard, he was not entitled to any discovery, even if tightly cabined); Scott Air Force Base Props., LLC, 548 F.3d at 520, cited supra p. 8.
The Court therefore should consider this motion to dismiss for subject matter jurisdiction before it considers the pending Motion to Intervene, ECF No. 5. See Defs.’ Mem. in Opp’n to Mot. to Intervene 8–9. II. The Plaintiffs Lack Standing Because They Have Not Alleged Facts to Establish that
the Executive Order Is Being Implemented in a Way that Treats Them Unfavorably Compared to Religious Organizations. A. The jurisdictional requirement of standing The constitutional separation of powers, as embodied in Article III of the Constitution, restricts the subject matter jurisdiction of the federal courts to the resolution of specific “‘cases’
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and ‘controversies’” and prevents courts from taking action to address matters better suited to legislative or executive action. Allen v. Wright, 468 U.S. 737, 750 (1984). One manifestation of the “case or controversy” limitation is the requirement of “standing,” which demands that any plaintiff in federal court show “such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498–99 (1975). Standing entails three elements:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (alterations in original) (footnote omitted) (citations omitted). These requirements can be stated more succinctly as “injury in fact, causation, and redressability.” Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam) (citing id.). The plaintiff bears the burden of establishing each of the three elements. See Defenders of Wildlife, 504 U.S. at 561. B. The plaintiffs have not alleged facts to support their generalized assertion of
discriminatory treatment under the Executive Order. The plaintiffs cannot establish standing because they do not allege specific facts to support an inference that the Executive Order is being or will be implemented in a manner that prefers religious organizations over secular organizations like FFRF. Neither the text of the Executive Order, the statements by the President, nor any official action by the IRS indicates that the Executive Order will be implemented in the manner hypothesized by the plaintiffs.
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The plaintiffs assert that the Executive Order “requires the IRS to selectively and preferentially discontinue enforcement of the electioneering restrictions of the tax code against churches and religious organizations, while applying a more vigorous enforcement standard to secular nonprofits” such as the plaintiffs’ organization. Compl. ¶ 3. The plaintiffs assert that this denies them equal treatment in a way that qualifies as an injury for purposes of standing and can support a request for relief that would nullify the supposed preferential treatment. Cf. Heckler v. Mathews, 465 U.S. 728, 739–40 (1984) (holding that, in appropriate cases, injury in the form of denial of equal treatment can support standing if it can be remedied by “withdrawal of benefits from the favored class”).
The plaintiffs’ broad theory, however, is not backed by allegations of specific facts that could support an inference that the Executive Order is being implemented in the manner they describe. Consequently, the plaintiffs have not alleged facts that would amount to the kind of “actual or imminent” injury needed to meet the requirements of standing.
When a plaintiff’s claims are based on a contention that the Government has adopted a certain policy, a “bare assertion” that the Government has adopted the policy is not enough to satisfy the “facial plausibility” standard elucidated in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rather, the plaintiff must allege specific facts that demonstrate the adoption of such a policy. Iqbal itself illustrates this principle. In Iqbal, the plaintiffs alleged, among other things, that the defendants had a policy of subjecting detainees to harsh conditions based on race, religion, and national origin. Id. at 666. The Court held that that assertion should be set aside because the plaintiffs did not allege specific facts that would “nudg[e]” the plaintiffs’ claim of a discriminatory policy “across the line from conceivable to plausible.” Id. at 682–83 (alteration in original). The Seventh Circuit has likewise required specific factual allegations to support
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assertions about the adoption of policies. See Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017) (dismissing a challenge based on allegations of an unlawful policy because the plaintiff did not allege specific facts that would make it plausible that such a policy existed); McCauley v. City of Chicago, 671 F.3d 611, 617–19 (7th Cir. 2011) (same).
In this case, the plaintiffs’ assertion that the Executive Order establishes an exemption available exclusively to religious organizations is not supported either by the text of the Executive Order or by any detailed factual allegations. The text of the Executive Order does not direct that religious organizations be exempted from the requirements of § 501(c)(3), nor does it direct that those requirements be enforced selectively against secular organizations. Rather, section 2 of the Executive 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 text of the Executive Order explicitly provides that it does not alter existing law and that it should be implemented consistent with existing law, which includes the political-campaign activity restrictions of § 501(c)(3).
The plaintiffs point to remarks allegedly made by the President or the White House around the time the Executive Order was issued.2 See Compl. ¶¶ 2, 4–7. But these remarks also do not support the plaintiffs’ assertions regarding the supposed adoption of a discriminatory policy. The remarks at most suggest that one of the motivations behind the Executive Order was to address perceptions that religious organizations were being unfairly targeted in the enforcement of the requirements of § 501(c)(3). None of the quoted remarks indicates that
2 Some of the plaintiffs’ allegations regarding statements made by the President appear to be inaccurate. For purposes of the present motion to dismiss, the Court can simply assume the truth of the allegations of the complaint, but the Government notes that, if this case is not dismissed, it reserves the right to dispute the plaintiffs’ allegations at a later stage.
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religious organizations will be exempted from the requirements of § 501(c)(3) while secular organizations will remain subject to them.
The plaintiffs also point to remarks allegedly made by the President on other occasions between June 2016 and February 2017. Compl. ¶¶ 9, 44–47, 49–56, 59, 61. These remarks— alleged to have been made months before the President issued the challenged Executive Order, and in some cases before he took office—are of dubious value for shedding light on the effect of the May 2017 Executive Order. But even assuming that these remarks are relevant, they do not support the plaintiffs’ claims of discriminatory treatment. While some of the remarks allude to a desire to “get rid of,” “totally destroy,” or seek “repeal” of the § 501(c)(3) provisions regarding political campaign activity, it does not follow that the May 2017 Executive Order in fact effects a repeal of those provisions, especially given the language of the Executive Order itself. Moreover—and crucially for purposes of the plaintiffs’ theory in this case—none of the quoted statements suggests that the President would seek repeal of the § 501(c)(3) provisions in a manner that would result in unequal treatment of the plaintiffs. A full repeal of the campaignactivity restrictions would not injure the plaintiffs; it would only benefit them. See Johnson v. U.S. Office of Pers. Mgmt., 783 F.3d 655, 666 (7th Cir. 2015) (holding that the plaintiffs could not establish standing based on a claim that they were treated “too favorably”); Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 823 (7th Cir. 2014) (“[A] party who receives an exemption has no standing to challenge it.”). None of the quoted statements alludes to a partial repeal that would lift the restrictions on political campaign activity only for religious organizations, while leaving the restrictions unchanged for secular organizations.
Moreover, the plaintiffs do not identify any action taken by the IRS to suggest that it has taken steps to implement the Executive Order in a way that exempts religious organizations from
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the restrictions on political campaign activity while leaving the restrictions in place for secular organizations like FFRF. On the contrary, the IRS has not withdrawn or amended its previously issued regulations or guidance pertaining to application of the § 501(c)(3) provisions governing political campaign activity. Those previously issued regulations and guidance subject religious and nonreligious organizations to the same standards and requirements.
FFRF brought an earlier suit in 2012 challenging what it viewed as inadequate enforcement of the § 501(c)(3) political campaign activity provisions against religious organizations. The suit was later voluntarily dismissed,3 but during the proceedings, this Court held that FFRF’s complaint adequately alleged that the IRS had a policy of favoring religious organizations. Freedom from Religion Found., Inc. v. Shulman, 961 F. Supp. 2d 947, 952 (W.D. Wis. 2013) (“At . . . the pleading stage, the Foundation need only allege that the IRS has such a policy, which it has done.” (citations omitted)). That decision is not binding precedent, however, and it should not be followed in this case, because it did not address the “facial plausibility” standard prescribed by the Supreme Court and Seventh Circuit precedent discussed above, and more particularly the need under that standard to allege specific facts that establish the existence of a policy. Moreover, the 2012 complaint contained at least some specific allegations concerning the IRS’s enforcement of the political campaign activity restrictions. See Complaint ¶¶ 21–31, Freedom from Religion Found., Inc., 961 F. Supp. 2d 947 (W.D. Wis. Nov. 14, 2012) (Case No. 12-CV-818), https://ffrf.org/images/uploads/legal/FFRFvShulmanComplaint.pdf, cited in Freedom from Religion Found., Inc., 961 F. Supp. 2d at 952. The complaint in this case, by
3 FFRF states on its Web site that FFRF agreed to dismiss the 2012 suit because “the IRS demonstrated it does not have a blanket policy or practice of non-enforcement of political activity restrictions.” Freedom from Religion Found., Victory: FFRF, IRS settle suit over church politicking, https://ffrf.org/legal/challenges/highlighted-court-successes/item/16261-ffrf-sues-irsover-non-enforcement-of-church-electioneering-restrictions (last visited Aug. 22, 2017).
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contrast, includes no allegations at all concerning actions taken or not taken by the IRS following the issuance of the Executive Order. Rather, it is focused exclusively on the Executive Order itself—indeed, the plaintiffs filed their case the same day the Executive Order was issued. As explained above, however, the plaintiffs’ characterization of the Executive Order is not supported by the Order’s plain text. And because the plaintiffs have not alleged any facts suggesting the IRS has applied or will apply the Executive Order in the manner the plaintiffs describe, the plaintiffs cannot demonstrate any “actual or imminent” injury based on the Executive Order.
Indeed, the Courts of Appeals of both the D.C. Circuit and the Fifth Circuit have rejected attempts to challenge Executive Orders based on a mere possibility that they could be implemented in a questionable manner. In Building and Construction Trades Department v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), labor unions and a city government sought an injunction against an Executive Order concerning federal and federally funded construction contracts, contending in part that the Executive Order could be implemented in a manner that conflicted with federal statutes. See id. at 30–31. The court held that a “mere possibility” that the Executive Order could be implemented in an unlawful manner could not “justify an injunction against enforcement of a policy that, so far as the present record reveals, is above suspicion in the ordinary course of administration.” Id. at 33. The court noted that the Executive Order specified that it applied “[t]o the extent permitted by law” and that the Order was facially valid, meaning that it was possible that it could be implemented in a lawful manner. Id. (alteration in original) (noting that, to prevail in a facial challenge against a regulation, the plaintiff must “establish that no set of circumstances exists under which the [regulation] would be valid” (alteration in original) (quoting Reno v. Flores, 507 U.S. 292, 301 (1993))); see also United States v. Salerno, 481 U.S. 739, 745 (1987). The Executive Order challenged in this case likewise specifies that it
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applies “to the extent permitted by law,” see supra p. 6, and nothing in the Executive Order makes it impossible that it could be implemented in a lawful manner.
Similarly, in National Treasury Employees Union v. Bush, 891 F.2d 99 (5th Cir. 1989), a union sought to challenge an Executive Order authorizing employee drug testing. Id. at 100. The Fifth Circuit found that “because not every application of the Order would be invalid, . . . [a]ny challenges to its implementation must be launched against the individual agency plans promulgated under it.” Id. at 101. In this case, the plaintiffs must direct their challenge at specific actions taken by the IRS under the Executive Order, and the IRS has not taken any actions to implement the Executive Order in a way that discriminates against secular organizations or otherwise injures the plaintiffs.
Because the plaintiffs’ factual allegations do not support their assertion that the Executive Order institutes a policy of unequal treatment, the complaint should be dismissed.
C. The plaintiffs have not made any request to be exempted from the political campaign activity restrictions of § 501(c)(3) in the same way they claim religious organizations have been exempted under the Executive Order.
Another reason the plaintiffs cannot meet the injury-in-fact requirement is that they have not alleged that they themselves have suffered any unequal treatment, as they have not alleged that they sought and were denied an “exempt[ion]” of the kind they claim has been granted to religious organizations, Compl. ¶ 62.
For the reasons explained in the previous section, it would be improper for the Court to assume that the Government has adopted a policy exempting religious organizations, and not secular organizations, from the political campaign activity provisions of § 501(c)(3). Even if the Court could make such an assumption, however, the plaintiffs still could not establish standing because they have not alleged that they themselves have been denied equal treatment under the policy.
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In a very similar case brought by the same plaintiffs, the Seventh Circuit held that the plaintiffs lacked standing to challenge a tax exemption that permits clergy to receive housing benefits from their churches without having to pay federal income tax. Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 825 (7th Cir. 2014). The court noted that to establish standing based on injury in the form of unequal treatment, a plaintiff must have been “personally denied equal treatment.” Id. at 822 (quoting Allen v. Wright, 468 U.S. 737, 755 (1984)); see also Flight Attendants Against UAL Offset (FAAUO) v. Comm’r, 165 F.3d 572, 574 (7th Cir. 1999) (“Ordinarily a person does not have standing to complain about someone else’s receipt of a tax benefit.”). Because the plaintiffs had never asked for the exemption, they could not claim to have been denied the exemption and therefore could not establish standing. See Freedom from Religion Found., Inc., 773 F.3d at 821. The court acknowledged that there was little reason to believe the plaintiffs would be permitted to claim the exemption, given that the exemption was explicitly limited to clergy, but the court found that that did not warrant any departure from the basic requirements of standing. See id. at 824–25 & n.6.
In this case as well, the plaintiffs have not alleged that they have sought and been denied the benefits of the exemption that they claim has been provided to religious organizations. Thus, the plaintiffs cannot establish standing.
D. The plaintiffs cannot establish standing based on any other theory. As explained above, the plaintiffs have not alleged facts that could support their theory that the Executive Order denies them equal treatment by affording an exemption to religious organizations and not to secular organizations. Nor is there any other theory under which the plaintiffs could establish standing. Plaintiffs who rely on the Establishment Clause are subject to the same basic standing requirements as plaintiffs who rely on any other provision of law. See Valley Forge Christian
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Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 482–90 (1982) (holding that the plaintiffs’ reliance on the Establishment Clause did not “demand[] special exceptions” from the requirement of standing). A mere concern with the legality of government action, no matter how sincere, is not enough; the plaintiff must demonstrate that the challenged government action has caused it some personal injury. Indeed, the plaintiffs in this case frequently challenge government action under the Establishment Clause, and in many cases they or their organization have been found to lack standing. E.g., Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 593 (2007) (plurality opinion) (concluding that the plaintiffs lacked standing to challenge Executive Branch spending on conferences promoting faith-based programs); Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 825 (7th Cir. 2017), discussed supra p. 17; Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803, 805 (7th Cir. 2011) (holding that the plaintiffs lacked standing to challenge a statute and presidential proclamations concerning a National Day of Prayer); Freedom from Religion Found., Inc. v. Nicholson, 536 F.3d 730, 731 (7th Cir. 2008) (holding that the plaintiffs lacked standing to challenge Veterans Administration chaplain programs); Freedom from Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1469 (7th Cir. 1988) (holding that the plaintiffs lacked standing to challenge the placement of a monument to the Ten Commandments in a city park).
The plaintiffs cannot establish standing based on their status as taxpayers. “Absent special circumstances, . . . standing cannot be based on a plaintiff’s mere status as a taxpayer.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011). The Supreme Court has recognized a narrow exception permitting taxpayers to challenge certain government expenditures under the Establishment Clause, but that exception is inapplicable here for several reasons, including that this case challenges Executive Branch action and does not challenge
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direct government expenditures. See id. at 141–43 (holding that the exception, originally established in Flast v. Cohen, 392 U.S. 83 (1968), did not permit challenges to tax credits).
Nor can the plaintiffs establish standing based on their general interest in the separation of church and state, see Compl. ¶¶ 20–25. An advocacy organization’s interest in the subject matter of a case is not enough to establish standing. See Valley Forge Christian Coll., 454 U.S. at 486 (“It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant’s interest or the fervor of his advocacy.”); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976) (“Our decisions make clear that an organization’s abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III.”); Sierra Club v. Morton, 405 U.S. 727, 739 (1972) (“[A] mere ‘interest in a problem,’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ‘adversely affected’ or ‘aggrieved’ within the meaning of the [Administrative Procedure Act, 5 U.S.C. § 702].”). In some circumstances, a membership organization may sue on behalf of its members, but an organization can establish standing on this basis only if it can identify at least one member who would have standing to sue in his or her own right. See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977) (noting that a membership organization suing on behalf of its members must show that “its members would otherwise have standing to sue in their own right”); Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009) (noting that prior cases “have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm”). The plaintiffs have not identified any FFRF member who meets the requirements of standing.
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The plaintiffs also cannot establish standing based on any impact the § 501(c)(3) political campaign activity restrictions have on FFRF alone, separate from any supposed unequal treatment. Even assuming that the restrictions imposed by § 501(c)(3) cause some injury to the plaintiffs, that injury could not support standing in this case, because it is not traceable to the challenged Executive Order and because the relief the plaintiffs are seeking would not relieve the injury. The plaintiffs are not seeking relief that would release FFRF from the political-campaign activity restrictions of § 501(c)(3); rather, they are seeking relief only to ensure that the restrictions are applied against religious organizations. See Compl. at 19 (requests for relief); Johnson v. U.S. Office of Pers. Mgmt., 783 F.3d 655, 661–63 (7th Cir. 2015) (holding that even assuming the plaintiffs were injured by administrative burdens imposed by the challenged statute, that was not enough to establish standing to challenge other aspects of the same statute); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) (“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.”).
Indeed, if the plaintiffs did aim to secure favorable tax treatment for themselves, rather than merely objecting to favorable tax treatment purportedly granted to other organizations, this Court most likely would lack jurisdiction for a different reason—the suit would be barred by the Tax Anti-Injunction Act, 26 U.S.C. § 7421(a), which generally bars federal court jurisdiction over any “suit for the purpose of restraining the assessment or collection of any tax.” Id.; see, e.g., Cleveland v. Comm’r, 600 F.3d 739, 742 (7th Cir. 2010) (per curiam); Bob Jones Univ. v. Simon, 416 U.S. 725, 738 (1974) (holding that the Tax Anti-Injunction Act barred a suit pertaining to an organization’s qualification for the § 501(c)(3) exemption); 26 U.S.C. § 7428
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(authorizing suits seeking declaratory relief relating to § 501(c)(3) status but specifying a narrow procedure for such suits). III. For Similar Reasons, the Plaintiffs’ Claims Are Not Ripe.
For similar reasons, the plaintiffs cannot meet the jurisdictional requirement of ripeness. “Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967)). Ripeness depends on “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Id. at 808. “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or that may not occur at all.” Citizens for Appropriate Rural Rds. v. Foxx, 815 F.3d 1068, 1079 (7th Cir. 2016) (citing Texas v. United States, 523 U.S. 296, 300 (1998)). Ripeness and standing are closely related, and a plaintiff who does not allege a present injury generally cannot meet either requirement. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007) (recognizing that in some cases, “standing and ripeness boil down to the same question”); Rock Energy Coop. v. Vill. of Rockton, 614 F.3d 745, 748 (7th Cir. 2010) (noting that standing and ripeness are “closely related” and that both doctrines “bar a plaintiff from asserting an injury” that is contingent on uncertain future events).
As discussed above, neither the text of the Executive Order nor the allegations made in the plaintiffs’ complaint provide any basis for believing that the Government will implement the Executive Order in a way that exempts religious organizations from the political campaign activity restrictions of § 501(c)(3) while denying a similar exemption to secular organizations.
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Such a policy may never be implemented, and the plaintiffs may never suffer the kind of unfavorable treatment described in their complaint. This case does not present a concrete set of facts that could anchor an analysis of the plaintiffs’ claims, and the plaintiffs are not suffering any present hardship that calls for immediate judicial intervention. See Rock Energy Coop., 614 F.3d at 749 (finding that the plaintiffs’ claims were not ripe in part because the plaintiffs did not show how a decision “would resolve some present hardship”); Corey H. v. Bd. of Educ., 534 F.3d 683, 689 (7th Cir. 2008) (holding that a challenge to limits on enrollment of disabled students was not ripe because no concrete action had been taken based on those limits). IV. The Complaint Also Fails to State a Claim for Relief Because the Plaintiffs’
Allegations Do Not Suggest that the Executive Order Will Be Implemented in the Manner that the Plaintiffs Describe. Because the plaintiffs cannot show any present personal injury that satisfies the requirements of standing and ripeness, the case should be dismissed for lack of subject matter jurisdiction. Even if the Court were to find that it has jurisdiction, it should dismiss the case for failure to state a claim under Rule 12(b)(6). The plaintiffs’ varied claims all rest on their mistaken premise that the Executive Order purports to establish an exemption available to religious organizations and not secular organizations. As explained above, neither the text of the Executive Order nor the allegations of the complaint provide any basis for reading the Executive Order in this way. The plain text of the Executive Order merely directs the Government not to take adverse action against religious organizations that it would not take against other organizations in enforcing the § 501(c)(3) political campaign activity restrictions, and it explicitly disclaims any intent to modify any law or grant any enforceable legal rights. The plaintiffs cannot succeed in a facial challenge to the Executive Order based on a mere theoretical possibility that the Executive Order could someday be implemented in an
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unlawful manner. Rather, a facial challenge requires the plaintiffs to establish that “no set of

circumstances exists under which the [Executive Order] would be valid,” United States v.

Salerno, 481 U.S. 739, 745 (1987). Because the plaintiffs cannot meet that standard, the

Executive Order is facially valid, and legal challenges to the Executive Order must be directed at

specific action taken under the Order. See Bldg. & Constr. Trades Dep’t v. Allbaugh, 295 F.3d 28,

33 (D.C. Cir. 2002); Nat’l Treasury Employees Union v. Bush, 891 F.2d 99, 101 (5th Cir. 1989).

IRS has not taken any steps to implement the Order in any way that might give rise to a

constitutional claim.4

CONCLUSION

Because the Executive Order does not afford unequal treatment to the plaintiffs or cause

them any other concrete injury, the plaintiffs cannot meet the requirements of standing and

ripeness, and the complaint should be dismissed for lack of subject matter jurisdiction. If it is not

dismissed for lack of subject matter jurisdiction, it should be dismissed for failure to state a

claim.

Date: August 22, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

JEFFREY M. ANDERSON Acting United States Attorney

BRETT A. SHUMATE Deputy Assistant Attorney General

4 To the extent the plaintiffs rely on the Take Care Clause, U.S. Const. art. II, § 3, it also bears noting that the Take Care Clause does not provide a cause of action against the President or other officers. See Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499 (1867) (holding that “the duty of the President in the exercise of the power to see that the laws are faithfully executed . . . is purely executive and political”); Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (holding that it would be improper for the courts to take over the President’s duty to “take Care that the Laws be faithfully executed”).
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Case: 3:17-cv-00330-jdp Document #: 17 Filed: 08/22/17 Page 30 of 30 LESLEY FARBY Assistant Branch Director s/ JAMES C. LUH JAMES C. LUH Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave NW Washington DC 20530 Tel: (202) 514-4938 Fax: (202) 616-8460 E-mail: James.Luh@usdoj.gov Attorneys for Defendants
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN
FREEDOM FROM RELIGION FOUNDATION, INC., DAN BARKER AND ANNIE LAURIE GAYLOR, CO-PRESIDENTS OF FFRF,
Plaintiffs,

v.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES; and JOHN KOSKINEN, COMMISSIONER OF THE INTERNAL REVENUE SERVICE,
Defendants.

Case No. 17-CV-330

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. President Trump signed on May 4, 2017, an Executive Order (“EO”) ostensibly meant to “vigorously enforce Federal law’s robust protections for religious freedom,” but which actually endorses religion and privileges religion over nonreligion. 2. The EO, in particular, requires the Internal Revenue Service (“IRS”), under direction of the Commissioner of the IRS, John Koskinen, “to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit,” according to the President when announcing his Order. 3. Among many faults, the EO requires the IRS to selectively and preferentially discontinue enforcement of the electioneering restrictions of the tax code against churches and religious organizations, while applying a more vigorous enforcement standard to secular nonprofits.

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4. The official White House Twitter account further describes the EO as having
the intended effect of “stopping the IRS from revoking a church’s or nonprofit’s tax-exempt
status if it chooses to support a political cause.”
5. During the signing ceremony, which occurred on the National Day of Prayer,
President Trump further emphasized that the EO is meant to literally undo the Johnson
Amendment or signal that the IRS will not enforce the Johnson Amendment against churches
and religious organizations:
No American should be forced to choose between the dictates of the federal government and the tenets of their faith. As I campaigned across the country, faith leaders explained that they were prevented from speaking their minds because of a 1954 rule known as the Johnson Amendment, I spoke about it a lot. Under this rule, if a pastor, priest, or imam speaks about issues of public or political importance they are threatened with the loss of their tax-exempt status. A crippling financial punishment--very very unfair. But no longer. I promised to take action. . . . And to this end, this financial threat against the faith community is over. In just a few moments I will be signing an executive order to follow through on that pledge and to prevent the Johnson Amendment from interfering with your First Amendment rights--and you’re the people I want to listen to. . . . You’re now in a position where you can say what you want to say. (Emphasis added.)
6. Thus, according to President Trump, the EO is meant to effect a significant
change in the status quo:
For too long the federal government has used the power of the state as a weapon against people of faith, bullying and even punishing Americans for following their religious beliefs -- it’s been happening. That is why I am signing, today, an executive order to defend the freedom of religion and speech in America, the freedoms that we’ve wanted, the freedoms that you’ve fought for so long and we are doing it in just a little while, right over here.
7. President Trump also made clear in his remarks that this EO is only meant to
benefit religious groups, and specifically churches:
This executive order directs the IRS not to unfairly target churches and religious organizations for political speech. No one should be censoring sermons or targeting pastors. In America we do not fear people speaking freely from the pulpit, we embrace it. . . . Under
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my administration, free speech does not end at the steps of a cathedral or synagogue or any other house of worship, we are giving our churches their voices back—we are giving them back in the highest form. With this EO we also make clear that the federal government will never ever penalize any person for their protected religious beliefs. 8. The President’s EO attempts to do something for which he has no constitutional authority: selectively veto a legitimate statute that Congress passed and the President signed into law more than 50 years ago. 9. The President proclaimed his intention to self-legislate at the National Prayer Breakfast, on February 2 of this year, boasting that “I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.” 10. The Plaintiffs seek a declaration under 28 U.S.C. §2201 that Defendants, in issuing and obeying this EO, violate the Establishment Clause of the First Amendment to the Constitution of the United States. 11. President Trump’s statements and actions also give the actual and apparent appearance of religious endorsement in violation of the Establishment Clause. 12. The Defendant’s actions further violate the Plaintiffs’ Equal Protection and Free Speech rights. 13. The President also lacks any enumerated or implied power to overturn a legitimate law and his attempt to do so violates the Take Care Clause of the United States Constitution. 14. The Plaintiffs request the Court to enjoin the Defendant Koskinen from implementing President Trump’s EO compelling selective and preferential non-enforcement of the electioneering restrictions against churches and religious organizations.
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15. The Plaintiffs also request the Court to order the Defendants to neutrally enforce the restrictions in Internal Revenue Code §501(c)(3) against churches and religious organizations, including the electioneering restrictions, applying the same enforcement standards applied to secular non-profit organizations.
16. The Plaintiffs also request the Court to enjoin President Trump from endorsing religion in his actions and deeds, while acting in his official capacity as President of the United States, which gives the intended impression that religious leaders have status as political insiders.
JURISDICTION AND VENUE 17. This Court has federal question jurisdiction pursuant to 28 U.S.C. §1331 with respect to the relief sought against the Defendants. 18. The Court also has the authority to issue a declaratory judgment under 28 U.S.C. §2201. The Court further has the authority to award injunctive relief under 28 U.S.C. §1443 and Fed. R. Civ. P. 65. 19. The United States has waived sovereign immunity, pursuant to 5 U.S.C.§702, for actions that seek specific relief other than money damages, as in this case. 20. Venue is appropriate in the District Court for the Western District of Wisconsin pursuant to 28 U.S.C. §1391(e), where FFRF has its principal office.
PARTIES 21. Plaintiff FFRF is a tax-exempt non-profit organization under §501(c)(3) of the Internal Revenue Code, and as such, FFRF must and does abide by the electioneering restrictions of §501(c)(3). 22. Plaintiff FFRF is a non-profit membership organization that advocates for the separation of church and state and educates on matters relating to nontheism; FFRF, in fact, successfully challenged the constitutionality of the National Day of Prayer, in a decision by
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the District Court for the Western District of Wisconsin, which was later vacated on grounds of standing, but not on the merits.
23. The Plaintiff has more than 29,000 members, residing in every state of the United States, including nearly 1,300 in Wisconsin, as well as members in the District of Columbia.
24. FFRF represents and advocates on behalf of its members throughout the United States.
25. FFRF’s membership includes individuals who are federal taxpayers who are opposed to government preferences and favoritism toward religion.
26. Plaintiff Annie Laurie Gaylor is a Lifetime Member and Co-President of FFRF, and she is a national and recognized spokesperson for FFRF.
27. Plaintiff Dan Barker also is a Lifetime Member and Co-President of FFRF, and he too is a national and recognized spokesperson for FFRF.
28. Plaintiff FFRF previously settled a lawsuit against the IRS for its failure to enforce the electioneering restrictions, in 2014, whereby the IRS duly assured appointment of authorized personnel to enforce those restrictions. FFRF then voluntarily dismissed that case, which was pending in the Eastern District before Judge Adelman. See Plaintiff’s Memorandum in Support of Motion to Dismiss, FFRF v. Koskinen, No. 12-0818 (July 29, 2014).
29. The Defendant Donald J. Trump is the President of the United States with a principal address of 1600 Pennsylvania Ave., Washington, D.C., 20006; Defendant Trump is sued in his official capacity.
30. The Defendant John Koskinen is the Commissioner of the Internal Revenue Service, with a principal address of 1111 Constitution Avenue N.W., Washington, D.C. 20224; the Defendant Koskinen is sued in his official capacity.
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LEGAL BACKGROUND 31. The Establishment Clause of the First Amendment to the United States Constitution prohibits governmental preference for, endorsement of, and discrimination in favor of religion. 32. Section 501(c)(3) of the Tax Code prohibits all non-profit organizations, including churches and other religious organizations, from intervening in political campaigns as a condition of their tax-exempt status. 33. The electioneering restrictions of § 501(c)(3), known as the Johnson Amendment, were enacted by a Republican Congress and signed in law by President Eisenhower, also a Republican, in 1954. 34. Under the Johnson 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. 35. All organizations, including churches and religious organizations, that are exempt from federal income tax under §501(c)(3) of the Tax Code are prohibited from participating or intervening, directly or indirectly, in political campaigns on behalf of or in opposition to any candidate for elective public office, which restrictions, according to the Defendants, are absolute. 36. The restrictions of §501(c)(3) on electioneering activities do not preclude discussions of issues that are not linked to support for or opposition to candidates; the fact that candidates may align themselves on one side or another of an issue does not restrict the ability of religious organizations or any other (c)(3) nonprofits from to engage in discussions of that issue.
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37. A discussion of issues violates the electioneering restrictions of §501(c)(3) only if the discussion contains overt or tacit support for or opposition to a particular candidate.
38. Factors relevant to determining whether an advocacy communication constitutes impermissible campaign intervention include: (a) whether the communication identifies one or more candidates for a public office; (b) whether the communication expresses approval or disapproval of one or more candidates’ positions and/or actions; (c) whether the communication is delivered close in time to an election; (d) whether the statement makes reference to voting or an election; and (e) whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office. I.R.S. Fact Sheet FS-2006-17, February 2006, “Election Year Activities and the Prohibition on Political Campaign Intervention for Section 501(c)(3) Organizations.”
39. The electioneering prohibition of §501(c)(3) applies, as adopted by Congress, even-handedly to tax-exempt organizations, including churches and religious organizations, and to the actions of individuals, including clergy or other religious leaders, acting as representatives of tax-exempt organizations; the prohibition of §501(c)(3) does not apply to the political activities of clergy or other religious leaders undertaken in their individual capacities.
40. The Internal Revenue Service follows special procedures before commencing inquiries about potential violations of §501(c)(3) by a church or religious organization.
41. The IRS may initiate a tax inquiry of a church or religious organization if a high- ranking IRS official documents in writing the acts and circumstances, including potential violations of the electioneering prohibition, that lead the official to reasonably believe that the Church may have violated the requirements for tax exemption under §501(c)(3).
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42. Until FFRF commenced suit against the IRS in 2014, no authorized official had been appointed.
43. According to an evangelical polling group, Lifeway Research, whose slogan is “Biblical Solutions for Life,” nearly 80% of Americans say it’s inappropriate for pastors to endorse a candidate in church and 75% do not believe it is appropriate for churches to publicly endorse candidates. Lifeway Research, “American Views on Candidate Endorsements and Tax Exemption,” (2015) available at http://bit.ly/2p8Anyt.
FACTS: DONALD TRUMP ON THE JOHNSON AMENDMENT 44. President Trump has made clear in multiple statements his intention to overturn the Johnson Amendment as it applies to churches. 45. In a closed-door meeting with “hundreds of Christian conservatives” on June 21, 2016, President Trump spoke about the Johnson Amendment in audio that was leaked to the Washington Post. The audience was almost exclusively Christian: “The audience included leaders and founders of many segments of the Christian Right, the evangelical movement that began in the 1970s under people including the late Jerry Falwell. Among those present and involved in the program Tuesday were Focus on the Family founder James Dobson (who is no longer with that group), former Christian Coalition head Ralph Reed and evangelist Franklin Graham (son of evangelical icon Billy Graham).” Michelle Boorstein and Julie Zauzmer, “Thrilling Christian conservative audience, Trump vows to lift ban on politicking, appoint antiabortion judges,” The Washington Post (June 22, 2016) available at http://wapo.st/1sNMD8W. See the full transcript at, Jon Ward, “Transcript: Donald Trump’s closed-door meeting with evangelical leaders,” Yahoo News (June 22, 2016) at https://yhoo.it/2pFclfl. 46. President Trump told this group of Christians, “The government has gotten so involved in your religion. Especially your religion, that it makes it very difficult. . . . You
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really don’t have religious freedom, if you really think about it, because when President Johnson had his tenure, he passed something that makes people very, very nervous to even talk to preserve their tax-exempt status. And it’s taken a lot of power away from Christianity,” adding as an afterthought, “and other religions.” [Note: The italicized emphasis appears in the original transcript. Contrary to the above, President Eisenhower signed the Johnson Amendment into law; it was proposed and named after Lyndon Johnson, then a United States Senator.]
47. President Trump also told this group that he attributes the decline of Christianity in America to the Johnson Amendment, which he will get rid of. He told a story he reiterated many times: “We were at a meeting of 50 ministers, pastors, Christians, two rabbis. I said, ‘Why is it that the whole thing with Christianity, it’s not going in the right direction? It’s getting weaker, weaker, weaker from a societal standpoint?’ And over the course of various meetings, I realized that there are petrified ministers and churches. . . . [W]hen it comes to talking about it openly or who they support or why they support somebody because he’s a person — a man or a woman — who is into their values, they’re petrified to do it. And I couldn’t get the answer. And then one day, at one of our meetings, somebody said, ‘They’re petrified of losing their tax-exempt status.’ And I said, ‘What is that all about?’ And they went into it. It was what happened during the Johnson [Eisenhower] administration. . . . And we are going to get rid of that, because you should have the right to speak.”
48. In that same meeting, President Trump said that overturning the Johnson Amendment “will be my greatest contribution to Christianity,” again adding as an afterthought, “and other religions.”
49. President Trump clarified that he was going to get rid of the Johnson Amendment to help stem the decline of American Christianity: “And we have to get rid of
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that, and if we don’t, I really think you’re going to have a continuing spiral. And I don’t want to see that, because I’ve been a Christian and I love Christianity. And the evangelicals have been so incredibly supportive.”
50. Promising to overturn the Johnson Amendment as a reward or benefit to American Christians while adding other religions as an afterthought is a message President Trump repeats regularly.
51. In his acceptance speech at the Republican Convention, President Trump again singled out one particular sect of Christianity, evangelicals, and characterized the Johnson Amendment as an attack on that particular Christian sect: “At this moment, I would like to thank the evangelical and religious community in general who have been so good to me and so supportive. You have much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits. An amendment, pushed by Lyndon Johnson, many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views. I am going to work very hard to repeal that language and protect free speech for all Americans.”
52. When President Trump introduced Mike Pence as his running mate on July 16, 2016, he also singled out evangelicals as the beneficiary of his attack on the Johnson Amendment: “And what we’re doing—and what we’re doing that I’m so proud of, so proud—and nobody else would even think about doing it— I fought very hard for it. We’ll call it the Johnson amendment, where he took away from the evangelicals—and I want to thank the evangelicals, because without the evangelicals, I could not have won this nomination. The evangelicals have been unbelievable. I dominated with the evangelicals. . . . And I said—and I said for the evangelicals, that we’re going to do something that nobody’s even tried to do. You have the Johnson amendment passed by [drafted by] Lyndon Johnson and his group. . . . the Johnson amendment, where you are just absolutely shunned if you’re
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evangelical, if you want to talk religion, you lose your tax-exempt status. We put into the platform, we’re going to get rid of that horrible Johnson amendment. And we’re going to let evangelicals—we’re going to let Christians and Jews and people of religion—talk without being afraid to talk.”
53. At the Family Research Council’s 11th Annual Values Voter Summit on September 9, 2016, President Trump again clarified that his desire to end the Johnson Amendment is tied to helping Christian churches: “The first thing we have to do is give our churches their voice back. It’s been taken away. The Johnson amendment has blocked our pastors and ministers and others from speaking their minds from their own pulpits. If they want to talk about Christianity, if they want to preach, if they want to talk about politics, they’re unable to do so. If they want to do it, they take a tremendous risk that they lose their tax-exempt status. . . . And I will repeal the Johnson amendment if I am elected your president, I promise. So important.”
54. President Trump told the Summit that repealing the Johnson Amendment will help boost Christianity and other religions “like a rocket ship”: “If I become president, we are going to knock out the Johnson amendment. We are going to do that. . . . And I actually believe that’s one of the reasons why you haven’t seen Christianity and other religions within the United States going like a rocket ship—like our polls have been going in the last four weeks, a rocket ship, right? I really believe that, because you’re great people. The people that you rely on on Sunday and all during the week, they’ve been stopped from talking and speaking by a law. And we’re going to get rid of that law and it’s going to get rid of – we’re going to get rid of it so fast.”
55. President Trump again linked his vendetta against the Johnson Amendment to his support of Christianity in his October 3, 2016 remarks to a veterans group in Herndon, Virginia, “So one of the things I’m gonna do and I have tremendous support with the
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evangelicals and with the Christians and with everybody, is we’re going to get rid of the Johnson Amendment that is very, very unfair, OK.”
56. President Trump further proclaimed his intent to repeal the Johnson Amendment in order to benefit Christian leaders in a speech to African-American voters at the New Spirit Revival Center in Cleveland on September 21, 2016: “I pledge to you we’re going to end the Johnson Amendment, which takes away the voice of your pastors, your minister, your great leaders. It takes away their voice. We’re going to end quickly— quickly—the Johnson Amendment.”
57. President Trump also was very explicit about helping Christianity gain power by overturning the Johnson Amendment when addressing a group of pastors in Orlando Florida on August 11, 2016, telling the pastors: “You should be far more powerful. And if you look what’s happened to religion, if you look at what’s happening to Christianity, and you look at the number of people going to churches—and evangelicals know this also—it’s not on this kind of a climb [gesturing to indicate increasing], it’s on this kind of a climb [gesturing to indicate decreasing]. Slow and steady in the wrong direction and a lot of it has to do with the fact that you’ve been silenced. You’ve been silenced, like a child has been silenced.” He continued, asking these pastors to tell everyone of his goal to repeal the Johnson Amendment, reiterating the huge benefit for evangelicals in particular: “I hope you can spread the word, this will be so great for religion, but it will be so great for the evangelicals, for the pastors, for the ministers, for the priests, for America, for America. You know, they took away your voice. . . . We’ll be able to terminate the Johnson amendment. And you’ll have great power to do good things. And religion will start going instead of this way [gesturing to indicate decreasing]–I mean, Christianity, when you think of what’s happening, you look at the numbers. I talk about Sunday school and people don’t even know what I’m talking about anymore. It’s true. They don’t know what I’m talking about. When
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you look—instead of going this way [gesturing to indicate decreasing], you’re going to be going this way. [gesturing to indicate increasing] You may be going this way [gesturing to indicate steeply increasing]. But you’re going to be going—we’re going to bring it back because it’s a good thing. It’s a good thing.”
58. President Trump promised to these pastors that evangelicals would be rewarded after the election, again adding other religions as an afterthought: “If we get the evangelicals, we get the different people that are represented by you. . . .You’re never going to have a chance again, 501(c)(3), termination for yourselves. Open speech, you can talk freely about who you like, think of that. You can have your people having—I mean dialogue within the churches and temples and whatever it may be, you can have actually dialogue, talk about who you want. It’s never going to happen again folks. . . . we will win. And you will see things happen with—for the evangelicals. You will see things happen that you wouldn’t believe. And—and, you know, really, most importantly, for religion, you’re going to see things happen, for religion. All religions.”
59. President Trump has consistently mischaracterized the very nature of the electioneering restriction established by the Johnson Amendment in an effort to garner support with evangelical voters.
60. The Johnson Amendment, in fact, does not prevent religious leaders, churches, or religious nonprofits from speaking on political issues, but merely prevents them from campaigning in elections on behalf of politicians, which the law also requires secular nonprofit organizations to refrain from doing.
61. At the National Prayer Breakfast, on February 2, 2017, Trump vowed to “get rid of and totally destroy the Johnson Amendment,” as applied to churches and religious organizations.
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FACTS: THE EXECUTIVE ORDER 62. On the National Day of Prayer, May 4, 2017, President Trump signed an EO ordering the Secretary of the Department of the Treasury to selectively and preferentially impose a policy and practice of non-enforcement by the IRS of the § 501(c)(3) electioneering restrictions of the Internal Revenue Code against churches and religious organizations. 63. The EO seeks to fulfill President Trump’s promise made at the National Prayer Breakfast to “totally destroy the Johnson Amendment.” 64. The President’s EO is intended to literally and by stage whisper exempt churches and religious organizations from electioneering restrictions, but continues to impose them on secular and nonreligious 501(c)(3)s. 65. Section Two of the EO, “Respecting Religious and Political Speech,” requires that all executive department and agencies “to the greatest extent practicable” respect and protect the freedom of persons and organizations to engage in religious and political speech. 66. Section Two further explains that “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.” 67. The EO, with the President’s annotated interpretation and construction, makes clear that a relaxed and differential standard of enforcement of § 501(c)(3)’ electioneering restrictions shall be applied to churches and religious officials.
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68. This interpretation of President Trump’s EO has been clearly recognized and
adopted by the Government, including by President Trump, who boasted to Pat Robertson on
July 12, 2017, during an interview broadcast on the Christian Broadcasting Network as
follows:
‘We’ve really helped because I’ve gotten rid of the Johnson Amendment, now we are going to try to get rid of it permanently in Congress, but I signed an executive order so that now people like you, that I want to hear from -- minsters and preachers and rabbis and whoever it may be -- they can speak,’ Trump said. ‘You know, you couldn’t speak politically before; now you can. And I want to hear from you and others that we like. Franklin Graham . . . Robert Jeffress, who is such a great guy, Pastor Jeffress; he used to go on television, I didn’t know who he was and he was always speaking so well of me and, you know, you have so many people that I want to hear from. Now they are going to be able to speak and that is going to be a great thing for Christianity, believe me. A great, great thing. And it is a great thing for religion.
69. This statement—that his order is a “great thing for Christianity”—was made
more than two months after this lawsuit alleging that the order favors Christian churches was
first filed.
70. When President Trump spoke at the Faith and Freedom coalition on Thursday,
June 8, 2017, he said:
[I]n a really beautiful ceremony at the White House on the National Day of Prayer I signed, as I promised I would, a new executive action to protect religious liberty in America, … That executive order also followed on one of my campaign promises to so many of you, to stop the Johnson Amendment from interfering with your First Amendment Rights.
That was my promise. This executive order directs the IRS not to unfairly target churches and religious organizations for political speech. So the people that you most respect can now feel free to speak to you, like my friends sitting right over here. I can now hear them, and they’re unimpeded.
So I just want to congratulate everybody in this room, because that was a big deal and it was a very important thing for me to do for you. And we’re not finished yet, believe me. We’re not finished yet.”
71. Reputable media also reported that the order had Trump’s intended effect.
72. The Washington Post declared, “Trump signs order seeking to allow churches
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to engage in more political activity,” with the lede: “President Trump on Thursday signed an executive order aimed at making it easier for churches to participate in politics, seeking to deliver on a campaign pledge to a community that overwhelmingly backed [ ] him in last year’s election.”1 The story quotes, “Ralph Reed, chairman of the Faith & Freedom Coalition and a leading advocate of repealing the prohibition, [who] called Trump’s order a good first step, saying that it removed ‘a sword of Damocles that has hung over the faith community for decades.’”
73. Reuters ran the headline, “Trump order frees tax-exempt churches to be more politically active,” explaining that “Trump signed an executive order on Thursday that allows tax-exempt churches to more actively participate in politics . . . The order partially fulfills an oft-repeated campaign promise by Trump, who appealed to religious conservatives in his 2016 run for the White House, although he would need an act of Congress to rescind the underlying law that he has opposed, known as the Johnson Amendment.”2
74. ABC News reported, “Trump signs executive order to ease restrictions on religious participation in politics,”3 with the lede, Trump “signed an executive order Thursday with the intention of easing restrictions imposed by the Johnson Amendment . . . .” ABC also pointed to Trump’s previous statement to show that this is indeed the intent of the EO: “Prior to the election in November, Trump told the audience at a Virginia rally, ‘I think it’s very unfair, and one of the things I will do very early in my administration is to get rid of the Johnson Amendment so that our great pastors and ministers, rabbis and everybody and priests and everybody can go and tell and can participate in the process.’”
1 John Wagner and Sarah Pulliam Bailey, “Trump signs order seeking to allow churches to engage in more political activity,” (May 4, 2017) available at http://wapo.st/2pL9u6L. 2 Daniel Trotta, “Trump order frees tax-exempt churches to be more politically active,” Reuters (May 4, 2017) available at http://reut.rs/2qvO9PG. 3 Cecilia Vega, Adam Kelsey, Ryan Struyk, “Trump signs executive order to ease restrictions on religious participation in politics,” ABC News (May 4, 2017) available at http://abcn.ws/2pzj3oN.
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75. Other non-profits are worried about the order. Even the Alliance for Justice, which is made up of more than 100 diverse organizations including AARP, the American Humane Association, and Methodist Healthcare Ministries, was concerned. Nan Aron, president of AFJ, described the executive order as “vague and foreboding, a dangerous mess that is most likely unconstitutional.” The order “sends threatening signals about how certain religious speech and religious institutions might be allowed to skirt laws imposed on others, and to impinge on citizens’ rights in the future,” she said. See AFJ Press Release, May 4, 2017 available at https://www.afj.org/press-room/press-releases/afj-trump-religious-libertyeo-a-dangerous-mess.
76. Groups that support Trump hailed the order as a major victory. 77. The Congressional Prayer Caucus Foundation sent out a “VICTORY UPDATE!” on May 6, 2017 that read: “Not only has the President signed an Executive Order protecting religious freedom, and stated that under his administration he will ‘not allow people of faith to be targeted, bullied or silenced again and we will never stand for religious discrimination,’ a number of state leaders have passed legislation to vigorously protect religious freedom.” (Emphasis in original). 78. The Congressional Prayer Caucus Foundation works alongside the members of the Congressional Prayer Caucus (a bipartisan and bicameral group of Congressional members who “continue to meet for 30 minutes before session every week to pray for God’s Divine wisdom and intervention in our governmental affairs) in order to build a network of like-minded government leaders who are committed to prayer and action.” See http://cpcfoundation.com/about/history/. 79. In short, the Government has undeniably embraced President Trump’s EO, which is uniformly perceived to preferentially favor religious speakers.
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80. The EO not only directs a relaxed standard of enforcement in regard to churches and religious organizations, but also conveys the intended impression that the Government is actively sending a message to Christians, and particularly evangelicals, that the IRS will no longer enforce the Johnson Amendment against them, thereby encouraging electioneering by churches and church officials, to the detriment of secular non-profit groups that are still held to a more rigorous standard of enforcement.
81. The President’s speech and his actions also convey a message of pure religious endorsement, which indicates that religious officials are political insiders, while secular groups and individuals are political outsiders.
82. The message conveyed by President Trump, moreover, accurately represents the reality, as President Trump has consistently pursued policies and practices that recognize the insider status of religious officials, specifically evangelical Christians.
83. Richard Land, president of the Christian Southern Evangelical Seminary in North Carolina, for example, reports that he has “regular, on-going, and continuing dialogue” with the Trump Administration and “never has he felt his advice and input were more welcomed in the White House since Mr. Trump became President.”
84. President Trump also hosted a six-hour meeting with evangelical leaders this summer that involved personal briefings from White House staff, and appearances from Vice President Pence and other high-ranking officials, and included a meeting in the Oval Office and the laying of hands on the President.
85. Many of the policy suggestions made by the religious leaders at that summer meeting subsequently and quickly were adopted by the President; for example, Tony Perkins, president of the Family Research Council suggested banning transgender people from serving in the military, which suggestion was backed up by others.
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86. Within days of meeting with religious leaders, including Tony Perkins, President Trump took action by announcing his transgender military ban via tweet and without first consulting military leaders.
87. The Plaintiff, FFRF, for its part, would be seriously harmed by enforcement of the electioneering restrictions if it violated § 501(c)(3), including by loss of tax-exempt status, which harm to FFRF would be devastating and irreparable.
88. The Defendant Koskinen, as the Commissioner of the IRS, is obligated to comply with President Trump’s EO.
89. The Plaintiff FFRF, including by its co-Presidents Annie Laurie Gaylor and Dan Barker, would engage in speech otherwise prohibited by the electioneering restrictions of § 501(c)(3) if a neutral policy of non-enforcement applied to secular non-profits as well as to churches and other religious organizations.
90. The Plaintiffs, however, face a reasonable and credible threat of selective enforcement of the electioneering restrictions of § 501(c)(3) if they violate the law, based on IRS pronouncements of required compliance and enforcement policy, as well as President Trump’s recognition of the restrictions as otherwise being real and effective.
91. The Internal Revenue Service, under the direction of Defendant Koskinen and under President Trump’s new EO, is required to follow a selective and preferential policy of non-enforcement of the electioneering restrictions of §501(c)(3) against churches and other religious organizations.
92. As a result of President Trump’s EO, churches and religious organizations will be able to blatantly and deliberately flaunt the electioneering restrictions of §501(c)(3), including during the upcoming 2018 elections, unlike secular non-profits, including FFRF.
93. The non-enforcement of the electioneering restrictions of §501(c)(3) against churches and other religious organizations constitutes preferential treatment of churches and
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religious organizations that is not provided to other tax-exempt organizations, including FFRF, which are required to comply with the electioneering restrictions of §501(c)(3).
94. Plaintiffs face a real and credible threat of enforcement of the Johnson Amendment strictures as a secular nonprofit that is not covered under the EO, and as a result their speech is reasonably chilled.
95. The selective non-enforcement of §501(c)(3) as to churches and religious organizations provides preferential treatment that is not neutrally available to other taxexempt organizations, including the Plaintiff FFRF in this case.
96. If FFRF were to endorse a political candidate it would risk losing its taxexempt status under §501(c)(3), which would cripple fundraising and expose FFRF to potential tax liabilities.
97. The intended non-enforcement of §501(c)(3) as to churches and other religious organizations by the IRS, as a result of this EO, will directly benefit churches and religious organizations, while discriminating against other non-profit organizations, including the Plaintiff FFRF, solely on the basis of religious criteria.
98. President Trump’s EO effectively amends §501(c)(3) and provides preferential treatment that is not neutral and generally applicable to all tax-exempt organizations.
99. The EO’s policy of selective non-enforcement of the electioneering restrictions of §501(c)(3) as to churches and religious organizations violates the Establishment Clause of the First Amendment.
100. The intended policy of selective non-enforcement of electioneering restrictions against churches and other religious organizations was designed and intended for the purpose of advancing the interests of churches and religious organizations above the interests of similarly situated nonreligious organizations, by allowing the former to engage in electioneering activities while the latter cannot. It is also intended to favor Christianity as the
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majority religion over other religions and evangelical Christianity as a voting bloc Trump depended on over other Christian sects.
101. The intended policy of selective non-enforcement of electioneering restrictions against churches and other religious organizations has the effect of providing a unique benefit to churches and religious organizations—the right to engage in electioneering activities while retaining 501(c)(3) tax exempt status.
102. President Trump’s EO also creates the appearance of government endorsement of churches and religious organizations and a preference for these religious organizations above similarly situated nonreligious organizations.
103. The intended preferential treatment of churches and other religious organizations results in obligations imposed on secular non-profits, including the Plaintiffs, that are not imposed on churches, which distinction arises exclusively from the application of religious criteria.
104. The Plaintiffs will be disadvantaged vis à vis churches and religious organizations by the EO’s intended result: the non-enforcement of the electioneering restrictions against churches and other religious organizations.
105. Individual members of FFRF, moreover, have had unavoidable and unwelcome exposure to President Trump’s actions preferentially endorsing religion.
106. In order to avoid exposure to President Trump’s publicly broadcast endorsements of religion, individual members would have to alter their own routines to prevent news exposure, which is not feasible; these unwelcome and unavoidable exposures have the effect of conveying a message of political isolation and outsider status.
107. FFRF’s interests, and the interests of its members, have been adversely impacted by President Trump’s actions, by undermining efforts to curb violations of the Johnson Amendment by religious officials.
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108. President Trump’s actions, including issuance of the EO, have the effect of further chilling IRS enforcement of the Johnson Amendment, which religious officials believe they can disregard without consequences.
109. For example, each of the proposed Intervenors in this case have submitted declarations indicating that they already endorse candidates from the pulpit without any reprisal from the IRS.
110. In fact, according to the Intervenors, themselves, the IRS continues to disregard open and notorious violations of the Johnson Amendment by religious officials, but President Trump’s EO, nonetheless, sends a loud message to the religious community that further self-restraint is unnecessary.
111. President Trump’s EO also violates the Equal Protection requirement of the Fifth Amendment to the United States Constitution, which discrimination is not justified by any non-proscribed rationale.
112. Churches and religious organizations obtain a significant benefit as a result of being exempt from income taxation, while also being able to preferentially engage in electioneering, which is something secular tax-exempt organizations cannot do, including FFRF, as a result the speech of secular non-profits, including FFRF, is selectively chilled in violation of free speech rights under the First Amendment.
113. The preferential tax-exemption that churches and other religious organizations obtain, despite noncompliance with electioneering restrictions, amounts to more than $100,000,000,000 annually in tax-free contributions made to churches and religious organizations in the United States.
114. The policy and practice of non-enforcement of electioneering restrictions against churches and religious organizations mandated by this EO confer benefits solely on the basis of religious criteria, as to which the Plaintiff FFRF does not qualify.
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115. Plaintiffs seek an order requiring that the enforcement policies of §501(c)(3) by the Defendant Koskinen not preferentially favor churches and religious organizations, thereby requiring a level playing field of neutral enforcement.
116. The intended policy of selective non-enforcement of electioneering restrictions against churches and other religious organizations has the effect of converting these organizations into unregulated political action committees, effectively excluding billions of dollars from taxation each year.
117. The tax benefits preferentially provided to churches and other religious organizations constitute an exclusive and discriminatory subsidy to religion in violation of the Establishment Clause of the First Amendment and the Equal Protection element of Fifth Amendment to the United States Constitution.
118. President Trump’s actions, including his theatrical signing of the EO, also convey an impermissible endorsement of religion that President Trump intended to be made known and broadcast, including the implication that religious leaders have insider status.
119. President Trump’s EO also selectively undermines enforcement of a duly enacted U.S. law, thereby violating his duties under the Take Care Clause, as well as violating the separation of powers; the President’s usurpation constitutes an ultra vires action for which he has no constitutionally delegated power to perform.
120. President Trump is required to faithfully enforce the law, thereby refuting “the idea that he is to be a lawmaker.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
WHEREFORE, Plaintiffs demand judgment as follows: a. Declaring that President Trump’s Executive Order violates the Constitution of
the United States by providing preferential treatment to churches;
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b. Declaring the Executive Order to be in violation of the Take Care Clause of the Constitution; and to be in excess of Presidential authority under Article II of the Constitution; and to be an infringement on legislative authority in violation of the separation of powers; and to constitute an ultra vires act, and therefore the Executive Order is invalid;
c. Enjoining Defendant Koskinen from implementing President Trump’s Executive Order exclusively for the benefit of churches and religious organizations;
d. Enjoining President Trump from engaging in public acts and deeds constituting government-sponsored endorsements of religion;
e. Awarding the Plaintiffs their reasonable costs and disbursements of this action as allowed by law; and
f. Awarding such other relief as the Court deems just and equitable. Dated this 19th day of September 2017.
BOARDMAN & CLARK LLP By /s/ Richard L. Bolton Richard L. Bolton Wisconsin State Bar No. 1012552 One South Pinckney Street, Ste. 410 Madison, WI 53701-0927 Telephone: (608) 257-9521 Facsimile: (608) 283-1709 Attorney for Plaintiffs rbolton@boardmanclark.com
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Case: 3:17-cv-00330-jdp Document #: 26 Filed: 09/19/17 Page 25 of 25 CERTIFICATE OF SERVICE
I certify that, on September 19, 2017, service of the foregoing was made upon all parties by filing it with the Clerk of Court using the CM/ECF system.
/s/ Richard L. Bolton
f:\docs\wd\26318\25\a2778842.docx
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