To understand the context for today’s Trump executive order on “religious liberty,” you have to appreciate the scare thrown into progressive circles at the end of January when a draft order on the same subject was leaked and circulated. It was horrifyingly sweeping, and seemed to aim at total immunity for those who wanted to discriminate against various people on allegedly religious grounds. As Sarah Posner reported at the time:
The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act…
“This executive order would appear to require agencies to provide extensive exemptions from a staggering number of federal laws—without regard to whether such laws substantially burden religious exercise,” said Marty Lederman, a professor at Georgetown University Law Center and an expert on church-state separation and religious freedom.
Well, the original order was never signed. And while the official line was that it was just a discussion draft, word soon got out that this fine work of godly craftsmanship had been quashed by that decidedly non-Christian power couple, Jared Kushner and Ivanka Trump, who were sensitive to LGBTQ concerns about discrimination, which were naturally sky-high.
Three months later, at a ceremony timed to coincide with the National Day of Prayer, President Trump finally signed a “religious liberty” order. But compared to the draft that was out there earlier, it is a bit of a nothing-burger, legally if not politically. It features a vague (and thus not very effective) exhortation to the federal government to promote and defend religious liberty, and language directing agencies to come up with ways to protect people and organizations with religious objections to the Obamacare contraception-coverage mandate (a task already more or less completed by Obama administration concessions and several federal court decisions, including the Supreme Court’s Burwell v. Hobby Lobby ruling).
The most prominent element of the order, though, involves a promise Trump made during the campaign that is of vastly more interest to conservative Christian clergy than to the faithful in the pews: repeal of the Johnson Amendment, the 1954 law sponsored by LBJ that keeps tax-exempt nonprofit groups — including religious organizations — from endorsing candidates for office. Since it’s a statute, Trump cannot repeal the Johnson Amendment without Congress. But in the new order, he instructs the IRS to stop enforcing it. That sounds significant until you understand only one church has ever, ever, lost tax-exempt status via enforcement of this law. The IRS has clearly given these groups a wide berth.
Reaction to Trump’s order has varied according to the political leanings of the reactors. At National Review, David French (famously a #NeverTrump leader last year) publicly articulated what was likely the private disappointment of Christian right folk who expected something closer to the earlier draft order. After contemptuously dismissing the provisions discussed above as mere window dressing, French offered this observation:
[T]he order is just as notable for what it omits as for what it reportedly includes. While the Johnson Amendment is important, its threat to religious freedom pales in comparison to the comprehensive assault on religious organizations on federally funded campuses, the threats to the religious freedom of Christian educational institutions, and the attack on the rights of conscience of dissenters from the new orthodoxies on marriage, the family, and even the definition of male and female. What will the administration do to protect religious freedom when the entire cultural Left mobilizes against it? We still don’t know.
They “still don’t know” in part because the issue that so often riles up conservative Christians and causes them to hunger and thirst for the right to discriminate — same-sex marriage — is nowhere mentioned in the order.
Nonetheless LGBTQ advocacy groups understandably denounced the order for its bad intentions:
“The LGBT Equality Caucus will remain vigilant for any attempt to undermine the hard-fought gains our community has made in the past decade,” Executive Director Roddy Flynn told CNN Thursday. “We plan on closely monitoring the implementation and interpretation of the executive order.”
Meanwhile, much of the intended constituency for Trump’s order seemed mildly pleased, mostly because he’s gratified them on other fronts — notably by the passage of a GOP health-care bill on the same day that banned use of federal funds by Planned Parenthood. He’s also, of course, given them one and could soon give them two Supreme Court justices likely to overturn Roe v. Wade and its constitutional right to abortion. And conservative Christians are sprinkled around the thin ranks of Trump appointees to important federal jobs.
All in all, the significance of this executive order is very much in the eye of the beholder.