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Religious Liberty Executive Order, Is It Something to Fear?

Recently, President Trump signed a new executive order titled “Presidential Order Promoting Free Speech and Religious Liberty.” While the order is not a surprise, what came out of the White House was very different from expected. Early drafts of the order, leaked by White House aides, included sections which permitted discrimination based on faith. These provisions would have almost been unconstitutional, and several organizations promised lawsuits if the order takes effect.

However, while Trump is no stranger to signing overreaching orders into effect which are later found unconstitutional, this most recent order is different. Instead, this order fits into another common theme for Trump executive orders: symbolic orders that basically do nothing on a legal level. After the order was published, the ACLU said that they didn’t think it was worth the time or resources of challenging the order. They described it as “an elaborate photo-op with no discernible policy outcome…[which] does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process.”

The order has three parts that could have some effect: 1) the government will enforce existing laws protecting religious freedom; 2) the agencies of the executive branch will temporarily not enforce a law preventing churches from participating in political campaigns–as much as is allowed by law; and 3) in the future the Secretary of Health and Human services will introduce regulations on already existing law regarding the contraceptive mandate of the Affordable Care Act (ACA). That may sound like an order that stands to substantially alter the face of the law. But a closer look will show that is not the case.

Vigorous Enforcement of What’s Already There

The first section of this new order promises that “the executive branch [will] vigorously enforce Federal law’s robust protections for religious freedom.” So basically, the executive branch promises to enforce the laws that are already in effect.

So what does this section accomplish or mean? Effectively nothing. It does not guarantee protection to federal employees who want accommodations over religious beliefs. It changes no laws or approaches. It promises no concrete changes. It does actually nothing. So, with that out of the way, let’s move on to sections that have marginally more impact on the state of the law.

Religious LibertyRelaxing the Johnson Amendment

The next section of the order promises that “all executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.” This by itself is so vague, it can’t be relevant. But, the section goes on to specifically target the Johnson Amendment.

The Johnson Amendment is an element of the code used by the Internal Revenue Service. It says that a 503(c) tax-exempt company–basically any non-profit whether secular or non-secular–may not “directly or indirectly [participate] in, or [intervene] in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”

The law itself already saw very infrequent application. But, the order states that the Department of the Treasury will take adverse action under the Johnson Amendment against religious organization for talking about politics from a religious perspective as little as possibly permitted while still following the law. This could mean anything from a relaxed standard about prosecution to nothing as the Johnson Amendment itself is law. It is most likely meant to imply that the IRS will be less likely to penalize of revoke 503(c) status for religious organizations or persons who are openly involved in politics. Including speeches or monetary contributions.

No matter what the order says, it’s actual effect has limits. No executive order can overcome or repeal an act of congress such as the Johnson Amendment. Nor can it repeal any existing regulations. The most it can do is relax the approach to this law temporarily. But doing so provides no benefit to organizations normally covered by the Johnson Amendment. This is because any religious organization which takes advantage of the relaxed enforcement–despite the uncertain level of protection the order provides–will just find itself in hot water in a few years upon the inevitable repeal under a new president.

But what exactly does this section of the order do? Pretty much nothing. It doesn’t have an effect, relaxing the enforcement of the Johnson Amendment is an actual change in approach if the Department of the Treasury changes how it handles Johnson situations. However, no lawyer could recommend taking advantage of such tenuous promises without an actual repeal of the law.

Targeting Women’s Access to Contraceptives

The final relevant section of the new order states that “the Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services will consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under” the ACA. So sometime in the future, agencies working under Trump could possibly add regulations dealing with the provisions of law that already exists. Like the ACA which needs employers with more than a certain number of employees to provide insurance plans offering no-cost birth control to their female employees.

To understand exactly what this part of the order does, it’s important to first understand the famous Hobby Lobby case of recent years and it’s history. In 1990, the Supreme Court ruled that you cannot break a law that applies the same to everybody as an expression of your religious beliefs. In response, Congress passed the Religious Freedom Restoration Act (RFRA). Under RFRA, practice is any exercise of religion whether compelled by, or central to, a system of religious belief or not. The RFRA is still in force and, although it is unconstitutional to apply it to state laws, it still applies to laws passed by the federal government.

This means that the ACA, in particular its provisions regarding contraception, were subject to the RFRA. This was the central argument in Hobby Lobby. The company was saying that providing contraceptives to its employees violated their RFRA rights as their religion didn’t support contraception. The Supreme Court decided that, in the case of closely held corporations (corporations owned by a small number of people with no public stock) RFRA meant that the ACA couldn’t require them to provide coverage with contraception. After this, the Obama administration added rules which allowed insurance companies to pay for contraceptives instead of the companies.

That’s the current state of the law already, the order is basically saying that it will try and make sure the law is properly enforced through new regulations. That being said, the Secretary of Health and Human Services has already announced quick follow up on this part of the order. It’ll be important to keep an eye on exactly what regulations spring forth from this section as they could easily make the jump from following the state of the law–no matter how unfortunate that state is–to improperly barring women from access to health services above and beyond what the law allows.

What it Does vs. What it Implies

In general, the right to free practice of religious or any other right is not supposed to limit others, but protect yourself. But this order does not offer protection to federal employees, even when they claim religious objection. Like the West Virginia County Clerk currently being sued for a practice of verbally assaulting homosexual applicants for marriage licenses. However, it has the potential to embolden such abusive actions. This order accomplishes as close to nothing for the cause it claims to champion that it can without being pure grandstanding. But at the same time has the potential to endanger the rights of women and the LGBT community through its implications. In the end, this is an order where everybody loses.
Jonathan Lurie


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