Last week, in a Rose Garden ceremony, President Trump released a much-anticipated executive order on religious liberty. The order addresses two issues: religious accommodation, specifically in the context of the contraception mandate under the Affordable Care Act, and the so-called “Johnson Amendment,” a provision of the tax code that bars tax-exempt charities, including religious organizations, from endorsing or opposing political candidates.
Many religious conservatives have been celebrating the order. I’m not sure exactly why. On the first issue, the order does little of substance—though I’ll concede that doing nothing right now may be part of a sensible longer-term strategy. On the second issue, which hardly anyone cared about before then-candidate Trump raised it in last year’s presidential campaign, the order likewise does very little, and hints at an unwelcome change in American tradition that conservatives should resist.
First, on religious accommodation: For several years, conservatives have argued that the law should accommodate parties who refuse to comply, from religious conviction, with progressive morals legislation—for example, Christian florists who decline to provide arrangements for same-sex weddings, and, especially, Christian employers who object to the contraception mandate. The mandate has reached the Supreme Court more than once in the past three terms, most notably in the Hobby Lobby case, which ruled that the mandate’s provisions with respect to for-profit, close corporations violate the Religious Freedom Restoration Act (RFRA), and Zubik, which remanded a different part of the Mandate, aimed at religious non-profits, for further lower-court review.
Last week’s order takes a very timid approach to the subject. It does not even refer to the conflict between religious liberty and progressive morals legislation—cases about florists and the like. True, these are mostly state cases, but the order could have said something about how federal authorities would treat such conflicts under RFRA, if and when they arise. The order does state that the attorney general “shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law,” but that’s awfully vague.
With respect to the contraception mandate itself, the order says only that the relevant administrators should think about changing it. Here’s the language: “The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections.” That’s it.
Now, this is not how presidents typically communicate with the heads of departments. If the president wants a change in regulations, he doesn’t tell his subordinates to think it over. He directs them to issue new regulations. So why is this order so timid? Why doesn’t it address religious accommodation more generally?
There could be many reasons, but here’s a guess. Maybe the administration feared that new regulations allowing for religious accommodation would lead to legal challenges and that the lower courts, as currently constituted, could not be trusted. Better to wait for the Senate to confirm new appeals court judges more sympathetic to religious liberty claims. This would be a sensible strategy, and this week’s announcement of a slate of strong new appeals court nominees makes this explanation more plausible. Or maybe the administration didn’t want to pay the political costs an order on religious accommodation would impose. Anyway, on religious accommodation, the order does pretty little.
With respect to the Johnson Amendment, the order likewise does little. All it says is that the Treasury Department should respect the right of people to express their religious convictions and, in particular, refrain from taking adverse action against a religious organization “that has expressed its views 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.” That is, the Treasury Department should not rule that a religious organization has violated the Johnson Amendment in circumstances where it would not rule that a non-religious organization had violated the Amendment. Fair is fair.
For this you need an executive order? Of course the Treasury Department should apply the Johnson Amendment in an evenhanded way, to religious and non-religious groups alike. But there’s no evidence that Treasury was doing otherwise. In fact, the IRS has given churches a lot of leeway when it comes to speaking out on political issues. As Ross Douthat tweeted last week, one could have followed law-and-religion debates for years and not heard a single complaint from conservatives about the unfair application of the Johnson Amendment, or an argument for removing the restriction on churches’ electioneering. It’s not an issue anyone was talking about.
In fact, avoiding partisan political contests is a longstanding tradition for American churches, and a very beneficial one. In the nineteenth century, Tocqueville observed that Christianity had a powerful influence in American politics; religion was, he famously said, “the first” of our “political institutions.” But Christianity’s influence on politics was an indirect one, and powerful precisely because it was indirect. Churches shaped Americans’ attitudes and morals, and Americans’ attitudes and morals shaped our politics. But churches studiously avoided party contests as such, and clergy “maintained a sort of professional pride in remaining outside of” them. As a result, Tocqueville observed, churches were never mixed up in the public mind with the vicissitudes of electoral campaigns, and maintained people’s confidence and respect.
This practice has served us very well. This is not to say that churches should avoid commenting on public questions, only that churches should refrain from endorsing or opposing particular candidates and parties, and avoid electioneering as such. In fact, I’ve never known a member of the clergy, liberal or conservative, who said he wanted to endorse or oppose a particular candidate from the pulpit. I suspect that, deep down, they all understood that mixing to that extent in partisan contests would interfere with their mission of preaching the Gospel and administering the sacraments. If last week’s order signals a change in our longstanding American tradition, it’s not a change conservatives should celebrate.
Now, I understand that many conservatives feel, with justification, that whatever the Trump administration does about religious liberty (and constitutional law generally) is likely to be better than what President Hillary Clinton would have done. That’s certainly true, and we should be grateful. President Trump’s choice of Neil Gorsuch and this week’s slate of very strong appeals court nominees are hopeful signs. But, as far as last week’s order goes, it was not the momentous event some perceive it to be.
Mark L. Movsesian co-directs the Tradition Project at the St. John’s Center for Law and Religion.
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