President Donald Trump today signaled his intentions to make good on a promise to "totally destroy" the Johnson Amendment by signing an executive order "Promoting Free Speech and Religious Liberty." While I appreciate the gesture, the order destroys nothing and falls significantly short of earlier promises.
The order aims to ease enforcement of the 1954 provision in the tax code banning churches and non-profit groups from endorsing political candidates or campaigns. Specifically, the act directs the IRS to exercise "maximum enforcement discretion" concerning the Johnson Amendment. By doing this, Trump said he was ensuring that "people of faith" would not "be targeted, bullied or silenced anymore."
However, executive orders do not change existing laws. So the Johnson Amendment remains the law of the land. And churches and other religious non-profits have no more guarantee now than they did previously that their political speech will not result in withdrawal of their non-profit status.
What's worse, the order leaves decisions concerning enforcement of the Johnson Amendment in the hands of the IRS, a department that has punished religious conservatives in the past. If Trump wants to offer real relief, he needs to pursue legislative action. As it is, the IRS can pick and choose whom it penalizes, which may not bode well for churches and other faith-based groups.
"President Trump's executive order provides hope . . . that he will move fully toward fulfilling his promise to protect religious freedom," said Michael Farris, President of the Alliance Defending Freedom. But he added, "Regrettably, this executive order leaves that promise as yet unfulfilled. . . . Though we appreciate the spirit of today's gesture, vague instructions to federal agencies simply leaves them wiggle room to ignore that gesture."
The ADF has been vigilant in its opposition to the Johnson Amendment, and even sponsors an annual "Pulpit Freedom Sunday" – a day when it encourages pastors to preach political sermons and send the transcripts to the IRS. While I don't think it's generally wise for churches and religious non-profits to promote specific political candidates or campaigns, I agree with the ADF that the Johnson Amendment is an unconstitutional restriction of religious freedom.
The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . ." In other words, Congress can't promote one religion over others, nor can it restrict anyone's religious practices or freedom of expression.
Churches and religious non-profits need to know that they can speak freely – even about politics – without the threat of onerous government intrusion. To ensure this, President Trump needs to support the Free Speech Fairness Act and encourage Congress to pass it promptly.
This act would allow pastors and religious non-profits to speak freely on all matters of life, including candidates and elections. However, it would not allow them to contribute to candidates or parties, which is reasonable given their tax-exempt status.
Other Provisions in the Order & Conspicuously Missing
Trump's executive order also aims to ease enforcement of Obamacare's contraception mandate, which requires employers to provide health insurance covering contraception, including some abortifacients. In this regard, the order may provide minimal relief.
Currently, closely held corporations with religious owners cannot be required to pay for insurance coverage of contraception thanks to the Supreme Court ruling involving Hobby Lobby. According to a senior administration official, the new order will make this exemption available to more companies, not just ones that are closely held.
But perhaps what's most disappointing about today's executive order is what it omitted. As Ryan T. Anderson notes, a February draft of the order would have allowed all Americans to buy healthcare that doesn't cover or subsidize abortion.
It also would have adopted the Russell Amendment, expanding religious exemptions for employers that are federal contractors or subcontractors. This would have ensured that religious organizations could maintain their right to hire according to their mission and identity without losing the privilege of contracting with the government.
The February draft also would have instructed all federal agencies that they may not take adverse action against federal employees or contractors because of their speech about marriage outside of their employment. And it would have instructed the entire federal government to respect federal statutes and Supreme Court decisions ensuring that the free exercise of religion applies to all people of all faiths in all places, and at all times.
An order containing these provisions would have lived up to the billing of "Promoting Free Speech and Religious Liberty." As is, the order is mostly for show, though perhaps, it's a first step towards more substantive change.