A Trump Executive Order to Shrug At
President Donald Trump’s executive order on religious liberty is a significant win for liberals -- not for what it says, but for what it doesn’t say. For months, evangelical conservatives have anticipated and liberals have feared an order that would have invited anti-gay discrimination under the rubric of religious freedom. A document purporting to be a draft order to that effect began circulating shortly after Trump’s inauguration.
Yet the order issued Thursday is silent on gay marriage or gay rights. It includes just three brief substantive sections, none of which is of great practical or symbolic significance.
The underlying message of the executive order is that the Trump administration is tired of issuing symbolic orders and then having them frozen in court. This order is constitutionally kosher -- in part because it does so little.
The first component of the order is a generic expression of a “policy” in favor of maximizing religious liberty. It declares that “the Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square.” That’s a bit of an overstatement, at least as applied to religious liberty advocates like James Madison, who believed firmly that the sphere of government and the sphere of religion were distinct. But in practice, it’s perfectly true that Madison wanted religious voices to be able to express themselves publicly.
And it’s true that, as the order goes on to say, “Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.” Consequently, there’s nothing particularly troubling about this section’s operative clause, which says simply that “the executive branch will honor and enforce those protections.”
The “policy” element of the order is meant to set up the second part, which essentially directs the secretary of the Treasury not to enforce the Johnson amendment. That’s a law that, in principle, denies tax-exempt status to religious organizations that support political candidates.
But the president apparently didn’t want to tell executive branch officials directly not to enforce the law, which would sound very much like a failure to fulfill his constitutional duty to “take care that the laws be faithfully executed.” And the president lacks the power to repeal a statute by executive order.
So the order instead directs that no “adverse action” be taken against a religious organization “on the basis” that it “has spoken about 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 by the Department of the Treasury.”
That’s a mouthful, but all it actually means is that the IRS won’t enforce the Johnson amendment in any way that it hasn’t already ordinarily been enforcing it.
The reality, however, is that the amendment basically isn’t enforced. In 1995, the IRS did enforce it against a church, and the federal district court in Washington upheld the enforcement. But that’s it. And the opinion included 65 examples of instances where the amendment was arguably violated with no consequences to the religious organizations that sponsored the speech endorsing candidates.
For what it’s worth, I think it would be fine to repeal the Johnson amendment, which is basically blatantly unenforcable as well as unenforced. But the Trump order doesn’t do that -- or even direct the IRS to ignore the law. Instead it’s essentially an empty, symbolic act.
The third part of the executive order does have some practical consequence. It directs relevant agencies to issue regulations exempting religious organizations from the contraceptive mandate of the Affordable Care Act.
The key fact to remember is that Barack Obama’s administration had already exempted almost all such organizations, including churches and synagogues. Indeed, in the notorious 2014 Burwell v. Hobby Lobby decision, Justice Samuel Alito based his decision to require that an exemption to the contraceptive mandate be given to a closely held corporation on the fact that the Obama administration had already exempted religious groups.
A handful of religious groups that were not covered by the Obama administration exemptions sued for exemptions of their own. That case went all the way to the U.S. Supreme Court, which failed to resolve it, trying unsuccessfully to broker a compromise after the death of Justice Antonin Scalia.
That case will now disappear, and the Trump administration will allow the exemption to organizations like the Little Sisters of the Poor, a group of nuns that runs a nursing home.
To be sure, that’s not the result many liberals wanted. But it’s actually a win for them because it doesn’t set a legal precedent. It would be much worse if the Trump administration declined to issue the exemption and the dispute went back to the Supreme Court, where Justice Neil Gorsuch would almost certainly provide the deciding fifth vote to hold that the Religious Freedom Restoration Act required the exemption.
With the fate of the ACA itself uncertain after the House’s vote on a health-care bill Thursday, applying the contraceptive mandate to groups like the Little Sisters of the Poor is hardly a major liberal priority. The contraceptive mandate won’t matter if there’s no ACA.
Liberals dodged a bullet -- maybe several -- with the religious liberty executive order. Trump is trying to avoid issuing blatantly unconstitutional orders that will be reversed. The Constitution is working.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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Noah Feldman at firstname.lastname@example.org
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