The order expresses an intent “to vigorously enforce federal law’s robust protections for religious freedoms” but leaves the details to various federal agencies.
Some groups say the order allows “discrimination” against gay and transgender people. They had attacked a “leaked” draft of the order released by the liberal magazine The Nation weeks ago.
That draft specifically told federal agencies to respect people with traditional religious views on unborn human life, sex and marriage. Critics said this threatened an unconstitutional “establishment of religion” favoring some religious views over others.
The final order says nothing about these issues, speaking of religious freedom generally. Yet the American Civil Liberties Union “stands ready” to sue. Apparently such groups will only accept an order that protects everyone except those with traditional views on sex and life. But wouldn’t such an order also be an “establishment of religion”?
Some religious freedom advocates, by contrast, are disappointed that the order itself does not rescind the Obama administration’s effort to force the Little Sisters of the Poor and other religious groups to help provide coverage for drugs and devices that violate their faith. The final order says only that the federal agencies that had mandated such coverage “shall consider issuing amended regulations” to protect such “conscience-based objections.”
However, it may not be a bad idea to leave the details of new conscience protections to experts who can make sure the rights of the full range of religious groups are addressed.
Finally, The Associated Press says the order’s policy on political activity by churches has garnered “both enthusiasm and dread” from religious leaders. Generally, evangelical pastors rejoiced that they could now support or oppose candidates, while liberal or “mainline” Protestant leaders believed such political involvement is a terrible idea for churches.
What AP and these preachers assumed was that (to quote Mother Jones magazine) the order “makes good Trump’s campaign promise to his religious base to ‘get rid of and totally destroy’ the Johnson amendment.” That assumption is false.
The Johnson amendment is a provision of the tax code that forbids nonprofit groups seeking a 501(c)(3) tax exemption to “participate in, or intervene in … any political campaign on behalf of (or in opposition to) any candidate for public office.”
The Trump order instructs the Treasury Department not to take adverse action against individuals or religious organizations that speak on “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.”
This order does not rescind the Johnson amendment — that would require an act of Congress. It forbids misusing that amendment to suppress speech about issues by believers while allowing it for others.
The U.S. Conference of Catholic Bishops does not endorse or oppose candidates. But some have claimed the church should lose its tax-exempt status, citing the bishops’ “faithful citizenship” documents and other statements explaining moral issues Catholic voters should consider. Beginning in 1980, such a claim by the group “Abortion Rights Mobilization” tied up the bishops in court for a decade.
This order tells the IRS to go after what the Johnson amendment actually forbids, instead of infringing on churches’ legitimate freedoms. And that is worthwhile.
The executive order does not do what some hoped and others feared, but it does some good. It should be welcomed as a good start, but more is needed.
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.