The Religious Liberty EO Is a Big Nothingburger

Yesterday, Donald Trump signed his 34th Executive Order, titled “Promoting Free Speech and Religious Liberty.” And, much to everybody’s surprise (really!), it doesn’t do anything. Like, at all.

I was interested because of rumors (backed up by leaks of early drafts) that it would fulfill his promise to “get rid of and totally destroy the Johnson Amendment.” Or, at least, that he would order the IRS to quit enforcing the prohibition on churches endorsing or opposing candidates for office.[fn1] In fact, the night before, there were reports that the EO would provide that the IRS should “exercise maximum enforcement discretion to alleviate the burden of the Johnson amendment which prohibits religious leaders from speaking about politics and candidate from the pulpit[.]”

Several colleagues and friends started discussing how we would divide the blogging duties over at The Surly Subgroup when the EO was signed and released. Then it was signed. Then it was released … and it didn’t look anything like what we expected, forcing us largely to rewrite our posts. If you’re interested in an explanation of what the so-called Johnson Amendment is, David Herzig explains it here. For a detailed, excellent review of what the EO actually says and does, Ben Leff has your back here. And if you decide that, in spite of the contentlessness of the EO, you want to sue,[fn2] I talk about some impediments you’ll face here.

So what does it do? From a tax perspective, it adopts the status quo: it basically says, Don’t apply the Johnson Amendment to religions differently than you would apply it to non-religious tax-exempt organizations.[fn3]

It makes sense, in a way, that the EO doesn’t do anything here. Because this isn’t a problem at all for churches; I’m only aware of one church that has lost its exemption for endorsing or opposing a candidate for office. That’s one church in the last more than 60 years. One.

In addition, the EO tells the Attorney General to issue guidance about religious liberty protections in federal law, and tells several agencies to “consider issuing amended regulations” (could the language be any wishy-washier?) addressing conscientious objection to the contraception mandate.

It’s clearly possible that the guidance and regulations that are eventually issued (if they’re ever issued—remember, there’s no order to issue the regulations, just to consider issuing them) the content will be objectionable. It’s also possible that the content will be benign. But, in spite of Trump’s rhetoric surrounding the signing, and in spite of fears and concerns on the left about what would happen, the EO does not do a single thing to promote or detract from religious liberty.

So why did Trump sign it? He’s fulfilling a promise he made to Evangelical voters. Or, rather, he’s making a show of fulfilling that promise, though Evangelicals have been, by and large, unimpressed with the content of the EO. Did he do this as a bait-and-switch? Did attorneys in his administration inform him that his early drafts were constitutionally or legally dubious? Does he just not really care about the issue? (Or, paraphrasing a friend, did we get punked or did Trump get punked?)

I don’t know. I do know, though, that, while this pays lip service to the concerns of some religious individuals, it does nothing more than lip service. And even that lip service is almost entirely in statements around the EO; it mostly can’t be found in the actual document.

[fn1] There were also—justifiable, based on early drafts—concerns that it would expand the ability of religious persons and entities to discriminate against the LGBT community and that it would severely curtail requirements that insurance provide contraceptive coverage.

[fn2] The ACLU said it would sue, but then its attorneys read the EO and decided that it really, truly was a nothingburger, and announced they wouldn’t. But never fear! The Freedom From Religion Foundation is picking up the slack, suing because, I don’t know, the EO says “religion” or something?

[fn3] Important to note here: both Trump and NPR have gotten the content really, really wrong here. I was listening to NPR yesterday afternoon, and the host talked about how 501(c)(3) limits religious people’s political speech. IT DOES NOTHING OF THE SORT. As a religious person, I can be as political as I want to be. I can rail against candidate Donald Trump (and, if you check my Twitter feed, I did, in fact, rail against candidate Donald Trump.) The prohibition only affects tax-exempt organizations, and representatives of the tax-exempt organization speaking in their capacities as representatives. That is, if President Monson endorsed Hillary Clinton during General Conference, that would probably violate the prohibition. If he was hanging out with people at dinner and said that he couldn’t imagine how a rational human being could vote for Donald Trump, well, that wouldn’t have any impact at all on the church’s exemption.