On Wednesday, I wrote that President Trump was planning to unveil a major executive order protecting religious freedom. I called it the first major conservative move by Trump since the nomination of Judge Neil Gorsuch to the Supreme Court.
I was wrong.
The originally-drafted executive order, leaked to The Nation a few months ago, protected religious organizations and businesses from discrimination under LGBT anti-discrimination law — it allowed Christian bakers to refuse to cater to same-sex weddings and religious day schools to avoid covering employees’ abortion care, for example. Reports had suggested that this executive order would only be watered down in mild fashion by Thursday.
According to new reports, the new executive order is milquetoast hogwash.
The new executive order only covers what Trump promised continuously and to minor effect during the campaign: it supposedly revokes the so-called Johnson Amendment, preventing religious 501(c)3s from speaking politics from the pulpit. But as CBS News reports:
[T]he executive order allows the IRS — when IRS officials choose — not to enforce the Johnson Amendment, which prohibits nonprofits such as churches and charities from “directly or indirectly” engaging in a political campaign. But the order doesn’t provide blanket relief for tax-exempt religious organizations, opening the possibility that the IRS could pick and choose whom to penalize. The official was clear that the order does not change current law, and any activity that is illegal now will still be illegal after Mr. Trump signs the executive order.
First, nobody in the religious community cares deeply about the Johnson Amendment. It's rarely enforced, and it's used as a convenient excuse by pulpit leaders to avoid talking politics — something many want to avoid anyway for fear of offending parishioners.
And in policy terms, as Ed Morrissey points out at Hot Air, this is “the worst of both worlds.” Why? He explains:
Which churches will have to worry about the IRS in a Trump administration? Which churches will have to worry about the IRS in a future Democratic administration? This arbitrariness does not provide stronger religious liberty — it takes us further from the rule of law and closer to the rule of executive whim. Either stop enforcing it entirely, or do nothing until Congress acts, and the latter is the choice that best supports the rule of law.
As other legal commentators have noted, it’s difficult to call President Obama’s executive amnesty unlawful when you’re busily declaring an executive amnesty on churches you like.
The only other provision of the executive order supposedly re-enshrines the Hobby Lobby decision. But the order does not protect religious federal contractors, who must obey LGBT protections under the law.
So, religious people get virtually nothing. This is a fig leaf. It does not protect religious businesses across the country, does not build a wall around the First Amendment, and doesn’t even win Trump points with the mainstream media. It merely waves at good policy, then caters to Ivanka Trump’s feelings about LGBT outreach.