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Trump’s Executive Order On Religious Liberty Is A Big Disappointment

Donald Trump’s executive order on religious liberty does little, and what little it does can be easily overturned.


“The first priority of my administration will be to preserve and protect our religious liberty,” the candidate Donald Trump claimed in a speech before the Iowa Faith and Family Coalition early in his campaign. Like many other promises we heard, this didn’t turn out to be true.

Trump’s instincts, history, and lifestyle made him, to say the very least, an unlikely champion of social conservative causes. So it was obviously a priority for the candidate to scatter his speeches with promises of religious liberty protections to woo evangelicals, who were obviously vital in helping him win the GOP primaries and the presidency.

When a draft of the religious freedom executive order leaked to the press earlier this year, it looked like the administration might provide comprehensive relief, not only protecting churches but Americans who sincerely operate on faith-based principles. The kind of people who lose their businesses when unelected authoritarians who sit on so-called Civil Rights Commissions persecute Americans for thought crimes.

In the order itself, however, the administration seems to have backed away from broader protections. This is reportedly the text. It focuses on three symbolic moves.

One, the administration promises to “vigorously promote religious liberty”; which, after years of the executive branch vigorously undermining it, is nice. But in practical terms it means little. President Obama also maintained that his administration, which did more to corrode protections in the First Amendment than any in memory, was a guardian of religious liberty.

Second, as the administration explained in its press release, it will direct the Internal Revenue Service “to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates on the pulpit.”

Trump had previously promised to get “rid of and totally destroy the Johnson Amendment.” From my ideological perspective, that would be just fine. The Johnson Amendment — a law forbidding religious organizations from engaging in political activities without losing their tax-exemption status — is an attack on free expression that singles out people of faith. There is no rational reason for paying taxes to be a prerequisite to engage in political speech. The law was specifically created to inhibit debate by forcing churches to choose between expression and faith.

In practical terms, however, the law is almost never enforced and religious leaders have never been particularly worried about it. In fact, it’s likely that most faith leaders are content avoiding political rhetoric in the pulpit, and having a legal excuse to do so insulates them from pressure. Those who want to politicize speech already ignore the law.

An executive order merely puts bureaucrats at the IRS in charge of dispensing justice at their pleasure. When a new administration comes along, it will be free to take the law as seriously as it wants. If you truly have a desire to get rid of the Johnson Amendment, it will take a legislative solution. Without a change to the law itself, any administration can come in and abuse this power in the future.

Third, the administration promises to provide “regulatory relief for religious objectors to Obamacare’s burdensome preventative services mandate, a position supported by the Supreme Court’s decision in Hobby Lobby.”

It’s about time those who have been sucked into Obamacare’s unconstitutional requirements on contraception, the Little Sisters of the Poor, and so on are helped. That’s something. But it does not repeal the HHS mandate. Why would Trump provide regulatory relief when he could offer a solid, comprehensive exemption that protects all Americans who run faith-based businesses? While the media will almost surely frame this as an anti-gay law, perhaps someone with access can ask the administration why it decided to abandon exemptions that were carved out in the draft — and that the president consistently promised to the American people?

Then again, it’s not all on Trump. Republicans were often critical of Obama for running a government through executive orders. The drawbacks of that kind of governance don’t change simply because they won the presidency. For one, it can be an abuse of power. Mostly, though, it’s ineffective, symbolic governance. Which is what we have here. Trump’s executive order does little, and what little it does can be easily overturned.