Fresh on the heels of a budget deal that fully funds Planned Parenthood, Donald Trump has signed a religious-liberty executive order that — if reports are correct — is constitutionally dubious, dangerously misleading, and ultimately harmful to the very cause that it purports to protect. In fact, he should tear it up, not start over, and do the actual real statutory and regulatory work that truly protects religious liberty.
According to the New York Times and others privy to the administration’s preview, the order has three main components: 1) a promise to “protect and vigorously promote religious liberty,” 2) a directive to “ease restrictions on political activity by churches and charities,” and 3) an order to “federal agencies to exempt some religious organizations from Affordable Care Act requirements that provide employees with health coverage for contraception.” Those directives are respectively 1) meaningless, 2) dangerous, and 3) meaningless.
(Update: the text of Trumps’s executive order is available, and it reflects the content described by the Times.)
Let’s dispense first with the vague and sweeping promise to “protect and vigorously promote religious liberty.” That’s a nice sentiment, but it’s proven only by actions, and if the order itself is considered one of those actions, then it’s self-refuting. The order doesn’t do anything “vigorously,” and it doesn’t “protect” anything at all.
Next — and this is important to understand — an executive order cannot repeal a statute, and legal restrictions on political activity by churches are statutory. They’re part of the so-called Johnson Amendment, a rarely enforced provision of the tax code that prohibits 501(c)(3) tax-exempt organizations from, as the IRS explains, “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”
The Johnson Amendment is constitutionally problematic (to put it mildly). Lyndon Johnson rammed it through Congress for the noble purpose of stopping nonprofits from supporting his primary opponent and preserving his own political hide, and it’s been on the books ever since. Though it’s rarely enforced, it hangs like the Sword of Damocles over the heads not just of churches but of every 501(c)(3) in the United States. First Amendment lawyers are desperate to find a good test case to challenge it, but the IRS’s general lack of enforcement means that the right case is elusive. So the amendment remains.
The answer to the Johnson Amendment, however, is to either repeal the statute or overturn it in court. This order does neither. In fact, a lawyer will commit malpractice if he tells a pastor or director of a nonprofit that this order allows a church or nonprofit to use its resources to support or oppose a candidate. Even if the Trump administration chooses not to enforce the law, a later administration can tear up Trump’s order and begin vigorous enforcement based on actions undertaken during the Trump administration.
Imagine, for example, that churches rely on this order to mobilize support for Trump in his 2020 reelection campaign. Imagine he loses to Kamala Harris. Then, suddenly, churches across the land would be instantly vulnerable to IRS enforcement action. Thinking they were protected, churches would find themselves in the worst of predicaments, with their rights and possibly even existences dependent on the capricious mercies of the federal courts.
Even worse, to the extent the Trump administration is using its “prosecutorial discretion” not to enforce the Johnson Amendment, how is that any different from the Obama administration’s decision to use its alleged prosecutorial discretion not to enforce immigration laws? Legislative problems demand legislative or judicial solutions.
The order’s last reported provision, a promise to “exempt some religious organizations” from the contraception mandate, is just as vague and meaningless as the order’s promise to vigorously protect religious freedom. Just as executive orders can’t overturn statutes, they also can’t overturn regulations, and the contraception mandate is on the regulatory books.
Congress can right now work to pass statutes that protect free speech and rights of conscience. That’s the real work of government. Anything else is fluff.
Finally, the order is just as notable for what it omits as for what it reportedly includes. While the Johnson Amendment is important, its threat to religious freedom pales in comparison to the comprehensive assault on religious organizations on federally funded campuses, the threats to the religious freedom of Christian educational institutions, and the attack on the rights of conscience of dissenters from the new orthodoxies on marriage, the family, and even the definition of male and female. What will the administration do to protect religious freedom when the entire cultural Left mobilizes against it? We still don’t know.
The administration can right now begin the rulemaking process to change the contraception mandate. Congress can right now begin the lawmaking process to repeal the Johnson Amendment. Congress can right now work to pass statutes that protect free speech and rights of conscience. That’s the real work of government. Anything else is fluff, a symbol at best.
Trump’s strongest move for life and liberty has been the nomination of an outstanding Supreme Court justice, but let’s be clear — a religious-liberty policy that depends mainly on nominating judges and hoping that they do the right thing is a half-measure at best and a fool’s errand at worst. The story of the Supreme Court of the last 40 years is largely of major battles lost and high hopes dashed. In the modern administrative state, the work of government is conducted through sweeping statutes and regulations that no one can count on a court to overturn. To guarantee protections for religious liberty, you write those protections into law, you don’t wish-cast them through executive orders.
While there is no one single reason why Donald Trump won the presidency, this much I do know: If Evangelical voters had not turned out in mass numbers, he would be sitting in New York right now plotting the comeback of Trump Steaks. It’s time for those Evangelical leaders who jumped on the Trump Train, the ones who are now oh-so-close to that coveted “room where it happens,” to speak with a single, united voice. Tell the president that the nation’s first liberty demands more respect — and more protection — than the dangerous nothingness of this executive order.
Editor’s note: This article has been emended since it first appeared.