The Alliance Defending Freedom is a prominent defender of religious liberty. They fight out religious liberty cases at the highest level – the Supreme Court of the United States.
Here’s what they thought of Trump’s executive action on religious liberty:
“During his campaign, President Trump stated that the first priority of his administration would be to preserve and protect religious liberty. In speeches, he said the Little Sisters of the Poor and other people of faith will always have their religious liberty protected on his watch and will not have to face bullying from the government because of their religious beliefs. Religious voters took him at his word, giving the president a mandate to affirm and protect Americans’ first freedom.
“The current outline of the Religious Liberty Executive Order released by White House officials recalls those campaign promises but leaves them unfulfilled.
“First, no specific relief is offered to families like the Vander Boons in Michigan, who were threatened with the effective closure of their family-run business for simply expressing a religious point of view on marriage that differed from that of the federal government.
“Second, the outline directs the IRS ‘to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment.’ But Americans cannot rely on the discretion of IRS agents, some of whom have abused that discretion for years to silence pastors and intrude into America’s pulpits. Nor does the outline do anything to prevent a future, hostile administration from wielding its power to penalize any church who dares exercise its constitutionally protected freedoms in a manner that displeases those in authority. A legislative problem like the Johnson Amendment demands a legislative solution like the Free Speech Fairness Act.
“Third, the outline indicates it will ‘provide regulatory relief for religious objectors to Obamacare’s burdensome preventive services mandate, a position supported by the Supreme Court decision in Hobby Lobby.’ The president certainly should fulfill his promise to protect the Little Sisters of the Poor, a host of Christian colleges, and others from having to choose between violating their consciences and paying crippling fines to the IRS.
Here is an article by religious liberty hero David French of the ACLJ in National Review. He makes a key point that must be understood by pastors who want to know if the coast is clear to speak about policy from a Christian perspective.
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 answer to the Johnson Amendment, however, is to either repeal the statute or overturn it in court. This order does neither. In fact, a lawyer will commit malpractice if he tells a pastor or director of a nonprofit that this order allows a church or nonprofit to use its resources to support or oppose a candidate. Even if the Trump administration chooses not to enforce the law, a later administration can tear up Trump’s order and begin vigorous enforcement based on actions undertaken during the Trump administration.
Imagine, for example, that churches rely on this order to mobilize support for Trump in his 2020 reelection campaign. Imagine he loses to Kamala Harris. Then, suddenly, churches across the land would be instantly vulnerable to IRS enforcement action. Thinking they were protected, churches would find themselves in the worst of predicaments, with their rights and possibly even existences dependent on the capricious mercies of the federal courts.
Although many evangelicals bet on Trump to do something to protect religious liberty, the President has not done anything with this executive action to solve the problems. I cannot help but think that we would have been better off with someone who was more aware of the challenges, and who had a track record of battling for religious liberty in his record.
Although Trump whiffed again on religious liberty, there are several pieces of legislation that Congress could take up to solve the problem.
Here are four of them:
Perhaps we can count on Trump to sign them – if the Republicans get them passed.