President Trump is expected to mark the National Day of Prayer on Thursday by signing an executive order that proclaims, “It is the policy of the administration to protect and vigorously promote religious liberty.” The order is a symbolic victory for Christian conservatives, but it appears to be a watered-down version of a draft leaked in February, and it’s unclear if it will have any significant effects.
The previous version of the executive order was so broad that it would have created “wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity,” according the The Nation. Civil-liberties and LGBT groups were outraged by the draft, saying it would effectively legalize discrimination.
The order Trump is set to sign on Thursday appears to focus on only two specific policy changes, according to the Washington Post. First, it calls for “regulatory relief” for religious organizations that were required to cover contraception as part of employees’ health plans under the Affordable Care Act. It’s not clear what that means in practice, as those requirements were already scaled back by the courts.
Second, it aims to ease restrictions on political activity by churches and charities. Under the Johnson Amendment, a 1954 provision in the federal tax code named for President Lyndon Johnson, tax-exempt organizations are banned from endorsing political candidates. Religious groups are free to discuss political issues, but if an IRS investigation finds that they’ve backed a particular candidate, they’re supposed to lose their tax-exempt status.
It’s not clear that this is actually happening. As the New York Times reports, there’s no way to know for sure since the IRS does not make its investigations public, but there’s only one reported case of a church losing its tax-exempt status for violating the Johnson Amendment. That was in 1995, when an upstate New York church warned Christians not to vote for Bill Clinton.
Still, some religious leaders claim that they’re being stifled by the threat of losing their tax-exempt status, and Trump drew big applause when he talked about getting rid of the amendment on the campaign trail.
The executive order directs the IRS to “exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment,” meaning that they should not actively pursue violations of the rule. But only Congress can fully do away with the provision since it’s part of the tax code. The “enforcement discretion” may draw a legal challenge, and it could be easily reversed by the next president.
On Wednesday a White House official acknowledged the limits of Trump’s executive order. “All laws still apply,” the official said, according to Politico. “Anything that would currently be illegal under current law would still be illegal, we’re not changing the law.”