What many hoped would be an executive order with a strong statement affirming religious liberty from President Trump could actually be simply a first step. It may also be a launching pad for future litigation. The order, signed on Thursday May 4, on the National Day of Prayer, was eagerly awaited by people of faith.
It has been characterized as a “first step” by many leaders in the religious community. But it is a far cry from what had been hoped would be a clear, direct and decisive order.
First, the order states, “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom.” At first glance, that may sound affirming, but it really does not have weight or meaning until a situation arises and the policy is tested. And in this case that likely means litigation in the courts.
Section two of the order states, “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.” This is perhaps the section of the order that has received the most attention.
It refers to what is known as the Johnson Amendment, which prohibits most notably houses of worship from talking about or endorsing candidates or campaigns. The actual law would need to be changed in Congress, however, so again it will remain to be seen what impact the order will have practically.
Religious liberty is enshrined in the First Amendment of our Constitution as a founding principle of our nation. pic.twitter.com/clxm4Lhh3l
— The White House (@WhiteHouse) May 4, 2017
Trump said that free speech does not end at the steps of cathedrals, houses of worship or synagogues. Ralph Reed, founder and chairman of Faith and Freedom Coalition, said in a statement, “President Trump’s executive order removes a sword of Damocles that has hung over the faith community for decades by administratively repealing the Johnson Amendment and restoring the right to political speech by pastors, churches and ministries.”
However, Jim Campbell wrote on May 5 at www.thehill.com, “Again, this seems like a game-changer, but the Johnson Amendment is an existing federal law that authorizes the IRS to punish certain political speech by churches. Trump’s executive order does not undo the Johnson Amendment — nor could it. So, the impact of the order’s second section is quite limited.”
What most seem to agree on is that this section of the order simply instructs the IRS to leave religious institutions alone when it comes to politics going forward. More room for litigation could come from here should the IRS ignore the order, or act against a religious entity in a way that is deemed challengeable in court.
Section three of the order states, “The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.” This relates to the famous Sisters of the Poor case which centered on the Obamacare contraception mandate and its objection to it.
Again, the order is vague in its wording, directing only that new regulations be drafted to accommodate conscience-based objections.
Section four states, “In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.” There is no wording regarding those who have refused to bake cakes for homosexual weddings, or how they will be treated under the Trump administration. The interpretation and guidance is left to the Attorney General’s Office.
What is distressing for some conservatives is that there was an earlier draft of the executive order that was much stronger and more direct. On May 4, Daniel Horowitz wrote in a piece titled, Trump’s Religious Liberty EO Scores Win for New York Values, “The initial version, which many in the conservative movement expected to the be the framework for today’s order, was rather strong in that it not only rescinded President Obama’s attacks on religious federal contractors, but also allowed for the creation of new groups and departments within the administration to track and monitor religious liberty the same way liberals have established bureaucratic beacons for their priority classes.”
Many on the Left feared that Trump’s order would be much broader and target them in its defense of religious liberty. They breathed a collective sigh of relief at the order, while some conservatives scratched their heads.
— BCNN1 (@bcnn1) May 8, 2017
However, in a vote of confidence for Trump and the future of religious liberty, Todd Starnes of FOX News wrote on his personal website, “I know that some of my fellow evangelicals are a bit uneasy because they don’t believe the executive order goes far enough – but be patient. This is the first of several steps to protect religious liberty. This president has demonstrated he is a friend to people of faith – and at the end of the day – I have no doubt he will honor his word. Just have faith.”