ON MAY 4th, America’s National Day of Prayer, Donald Trump sent a thank you note to the white evangelicals who overwhelmingly voted to make him the 45th president. It came in the form of a long-awaited executive order “promoting free speech and religious liberty”. Its content, however, turned out to be rather feeble. One disappointed commentator called it “woefully inadequate”; a noted religious scholar dismissed it as “meaningless” and a “betrayal”. On the other end of the ideological spectrum, the American Civil Liberties Union (ACLU), which has fought the new president’s moves against sanctuary cities and travel from Muslim countries, couldn’t quite believe its eyes: “We thought we’d have to sue Trump today”, the ACLU tweeted. “But it turned out the order signing was an elaborate photo-op with no discernible policy outcome.”
What did everyone expect Mr Trump to do? On February 1st, someone leaked what seemed to be the initial plan to The Nation: a controversial move to allow religious people to exempt themselves from duties impinging on their religious beliefs. Federal workers and contractors who find homosexuality beyond the moral pale would have been able, for example, to ignore a same-sex couple’s marriage license and reject its tax return or a gay man’s application for veteran’s benefits. Religious organizations would have enjoyed similar immunity—turning away transgender people from soup kitchens or refusing to work with lesbian couples who wished to adopt a child.
On May 3rd, White House officials confirmed to Politico that this broad license to discriminate against gays and lesbians was the heart of a potential presidential order. But later that evening, the administration backpedaled vigorously. Without mentioning a radical expansion of the freedom of conscience whereby religious beliefs could be wielded against sexual minorities, the White House lowered expectations. The order would merely direct the Internal Revenue Service to “exercise maximum enforcement discretion to alleviate the burden of the Johnson amendment”, a 1954 rule making churches’ and other non-profit groups’ tax-exempt status contingent on steering clear of certain types of political advocacy.
Having pledged to “get rid of and totally destroy” the Johnson amendment in early February, in a speech in the White House’s Rose Garden on the morning of May 4th, Mr Trump signalled he would do just that. “For too long the federal government has used the power of the state as a weapon against people of faith”, he said, “bullying and even punishing Americans for following their religious beliefs”. With the benefit of his new executive action, he told assembled clergy, “you’re now in a position to say what you want to say” with no federal official “censoring sermons or targeting pastors”.
But when the text of the order emerged in the early afternoon, Mr Trump’s promise seemed to go unfulfilled. In fact, the language of the executive order amounted to a convoluted restatement—rather than repudiation—of the Johnson amendment itself. After a throat-clearing initial section—indicating that the White House will “vigorously enforce federal law’s robust protections for religious freedom”—the order got down to business, and the lawyers’ pen came out. Section 2 instructs the IRS “not take any adverse action against any individual, house of worship or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective”. That sounds like something, but it isn’t, really. Listen to the buried caveat in the rest of the sentence: “…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”.
Here is the translation: religious leaders speaking from the pulpit have nothing to fear from the IRS if they speak about political issues unless they specifically endorse or oppose particular political candidates. Like all non-profit organizations with tax-exempt status, religious entities aren’t allowed to speak well or ill of individuals running for office. But the Johnson amendment precludes only this kind of talk; it does not bar preachers from holding forth on moral issues of the day. That has been the rule for decades. Mr Trump’s executive order merely repeats it.
If anything, the new executive order highlights a constraint on churches that the IRS has been loath to apply over the years. For nearly a decade, annual taunts from congregations have been hand-delivered to the IRS in the form of video evidence they are breaking the rule against candidate-advocacy. But the IRS has remained stoically impassive as the gadflies have tried to spur them to attack, prudently avoiding a fight that would give churches an excuse to cry discrimination. So even the mild limit on pulpit advocacy in the Johnson amendment has gone all-but-unenforced over the years, making Mr Trump’s order something decidedly less exciting than weak tea.
One wonders how the latest and lamest Trump executive order came into being. One possibility is that the original leaked order was the handiwork of Mike Pence, the pious vice president, and that Ivanka Trump, the president’s daughter, prevailed on him to steer clear of a move that would infuriate the gay and lesbian community and gay-friendly millennials. Another is that lawyers in the Department of Justice are growing weary of defending indefensible orders in the federal courts and then losing, badly. If nothing else, the religious-liberty order is one that should avoid any serious legal challenges. That’s about the best that can be said for it.