Trump’s Executive Order on Religious Liberty: Glass half full, half empty, other?

It’s not surprising that today’s Presidential Executive Order Promoting Free Speech and Religious Liberty has met with many different reactions. That’s par for the course for any Presidential action of consequence (and non-consequence). Of more interest is how divided response has been among politically conservative, orthodox Christians. So, for example, here is Knights of Columbus CEO Carl Anderson’s statement in response to President Trump’s executive order:

We applaud President Trump’s executive order on religious liberty. While there is still work to be done to restore the reverence for religious freedom enshrined in the first amendment, this order marks an important step in restoring those constitutional principles guaranteed to every American. Guided by their beliefs, people of faith contribute in important ways to every aspect of this country, and this order will begin to restore the principles upon which this country was based: that people of faith should be able to exercise that faith with the protection rather than the opposition of their government.

Another Catholic, author and marriage advocate Ryan T. Anderson (no relation, as far as I know), is not applauding:

Today’s executive order is woefully inadequate. Trump campaigned promising Americans that he would protect their religious liberty rights and correct the violations that took place during the previous administration.

Trump’s election was about correcting problems of the last administration, including religious liberty violations and the hostility to people of faith in the United States. This order does not do that. It is a mere shadow of the original draft leaked in February. …

Media reports from Tuesday said that today’s executive order was going to provide meaningful protections: “one influential conservative who saw the text said it hasn’t been dialed back much—if at all—since the February leak. ‘The language is very, very strong,’ the source said.”

In reality, what Trump issued today is rather weak. All it includes is general language about the importance of religious liberty, saying the executive branch “will honor and enforce” existing laws and instructing the Department of Justice to “issue guidance” on existing law; directives to the Department of the Treasury to be lenient in the enforcement of the Johnson Amendment; and directives to the secretaries of the Treasury, Labor, and Health and Human Services (HHS) to “consider issuing amended regulations” to “address conscience-based objections” to the HHS contraception mandate.

Those criticisms are made even more forcefully by National Review Online senior writer David French (posted before the order was made public), who is also an attorney and an Evangelical:

Fresh on the heels of a budget deal that fully funds Planned Parenthood, Donald Trump has signed a religious-liberty executive order that — if reports are correct — is constitutionally dubious, dangerously misleading, and ultimately harmful to the very cause that it purports to protect. In fact, he should tear it up, not start over, and do the actual real statutory and regulatory work that truly protects religious liberty.

According to the New York Times and others privy to the administration’s preview, the order has three main components: 1) a promise to “protect and vigorously promote religious liberty,” 2) a directive to “ease restrictions on political activity by churches and charities,” and 3) an order to “federal agencies to exempt some religious organizations from Affordable Care Act requirements that provide employees with health coverage for contraception.” Those directives are respectively 1) meaningless, 2) dangerous, and 3) meaningless.

French further explains:

Let’s dispense first with the vague and sweeping promise to “protect and vigorously promote religious liberty.” That’s a nice sentiment, but it’s proven only by actions, and if the order itself is considered one of those actions, then it’s self-refuting. The order doesn’t do anything “vigorously,” and it doesn’t “protect” anything at all.

Next — and this is important to understand — an executive order cannot repeal a statute, and legal restrictions on political activity by churches are statutory. They’re part of the so-called Johnson Amendment, a rarely enforced provision of the tax code that prohibits 501(c)(3) tax-exempt organizations from, as the IRS explains, “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”

The Johnson Amendment is constitutionally problematic (to put it mildly). Lyndon Johnson rammed it through Congress for the noble purpose of stopping nonprofits from supporting his primary opponent and preserving his own political hide, and it’s been on the books ever since. Though it’s rarely enforced, it hangs like the Sword of Damocles over the heads not just of churches but of every 501(c)(3) in the United States. First Amendment lawyers are desperate to find a good test case to challenge it, but the IRS’s general lack of enforcement means that the right case is elusive. So the amendment remains.

The Atlantic’s Emma Green has a good round-up of reaction, including this:

“Mr. President, we’re going to be your most loyal friends,” said Robert Jeffress, another Texas megachurch pastor who attended the dinner. “We’re going to be your enthusiastic supporters. And we thank God every day that you’re the president of the United States.” Another attendee, the former Liberty University Vice President Johnnie Moore, tweeted that it was “truly an amazing evening. Evangelicals feel right at home in the @WhiteHouse.”

As details about the executive order circulated on Wednesday night, though, many religious conservatives did not feel as pleased with President Trump. On Twitter, the National Review columnist David French called the order “total weaksauce” and a “sop to the gullible.” Russell Moore, the head of the public-policy arm of the Southern Baptist Convention, told me in a message on Thursday morning that “I am hoping that the draft we are seeing this morning is not the entire project, and that more will be forthcoming.” And on Ryan Anderson, a scholar at the Heritage Foundation who works on religious issues, called the new order “woefully inadequate.”

The sense, overall, is that some are seeing a glass half full, ready to be filled at some hazy future date, while others see a glass half empty, cracked, and teetering on the edge of a cliff. (Personally, I am mostly in the latter camp.) And so Green reports that:

Ralph Reed, a political strategist who runs the Faith and Freedom Coalition, said in a statement on Wednesday night that the provision of the executive order on the Johnson Amendment “removes a sword of Damocles that has hung over the faith community for decades” and the provision on religious non-profits “lifts a cloud of fear over people of faith and ensures they will no longer be subjected to litigation, harassment and persecution simply for expressing their religious beliefs.” This order is “just the first bite at the apple,” he wrote, “not the last.”

Which means, if nothing else, many readers are getting an education in the meaning of “the Sword of Damocles”.

Finally, Cardinal Daniel N. DiNardo, Archbishop of Galveston-Houston and President of the United States Conference of Catholic Bishops (USCCB), issued this response to the executive order:

“Today’s Executive Order begins the process of alleviating the serious burden of the HHS mandate. We will engage with the Administration to ensure that adequate relief is provided to those with deeply held religious beliefs about some of the drugs, devices, and surgical procedures that HHS has sought to require people of faith to facilitate over the last several years. We welcome a decision to provide a broad religious exemption to the HHS mandate, but will have to review the details of any regulatory proposals.

In recent years, people of faith have experienced pressing restrictions on religious freedom from both the federal government and state governments that receive federal funding. For example, in areas as diverse as adoption, education, healthcare, and other social services, widely held moral and religious beliefs, especially regarding the protection of human life as well as preserving marriage and family, have been maligned in recent years as bigotry or hostility — and penalized accordingly. But disagreement on moral and religious issues is not discrimination; instead, it is the inevitable and desirable fruit of a free, civil society marked by genuine religious diversity.

We will continue to advocate for permanent relief from Congress on issues of critical importance to people of faith.  Religious freedom is a fundamental right that should be upheld by all branches of government and not subject to political whims. As president of the Bishops’ Conference, I had the opportunity to meet with President Trump this morning in the Oval Office to address these and other topics.”

More to come as we keep an eye on the cup.