On Religious Liberty, Trump's Executive Order Doesn't Match Rhetoric

Updated at 6:40 p.m. ET

President Trump signed an executive order Thursday that directs the executive branch to "honor and enforce" existing protections for religious liberty and asks agencies to "consider issuing amended regulations" for organizations that don't want to cover contraception in employer health insurance plans.

Trump signed the order in the Rose Garden after a ceremony to mark the National Day of Prayer. He said he was fulfilling a campaign pledge to "take action" on religious liberty.

But the order he signed was less substantive than he signaled.

The American Civil Liberties Union, which was planning to sue over the order, changed course after reading the text, declaring the event "an elaborate photo-op with no discernible policy outcome."

Trump did open the door to future policy shifts. He directed the attorney general to "as appropriate, issue guidance interpreting religious liberty protections in Federal law."

But the White House had previously said Trump would urge the IRS to use "maximum discretion" in enforcing laws regarding religious organizations and offer "regulatory relief" to religious objectors to contraception coverage. Neither of those policy changes was directly brought into effect by the order.

Greg Baylor, senior counsel with the Alliance Defending Freedom, told NPR he supported Trump's stated goals but that the actual text "doesn't fully accomplish the promise" that Trump made in the Rose Garden.

Mathew Staver, founder and chairman of the evangelical Liberty Counsel, said he was "pleased" with the order, telling NPR that Trump "set forth the general policy" of protecting religious freedom. He emphasized the possibility of future action by individual agencies.

In the meantime, here's a look at what Trump's executive order does — and doesn't — do.

The Johnson Amendment

The White House originally said Trump would urge the IRS to use "maximum enforcement discretion" regarding the Johnson Amendment, which was passed in 1954 and prohibits 501(c)(3) nonprofits from endorsing specific political candidates. But the order itself, while calling on all agencies to protect religious liberty, instructs the Department of Treasury to enforce the law exactly as it is written.

In the Rose Garden on Thursday, Trump said the rule threatens the tax-exempt status of a church if a leader "speaks about issues of public or political importance." That is false: The amendment applies only to advocating for or against a specific candidate. Taking positions on issues is permitted.

Trump's executive order writes that speech on "moral or political issues from a religious perspective" should not be penalized, which is in line with existing IRS policies. It suggests an exception for speech that has "ordinarily been treated" as an endorsement — in other words, the order tells the IRS to enforce the law as it has in the past, and treat churches the same as other nonprofits.

Baylor called that "sort of self-evident," rather than the kind of shift in policy his organization is advocating.

Alex Luchenitser — the associate legal director of Americans United for Separation of Church and State, which opposes Baylor's group on this issue — similarly said the order had "more bark than bite."

"With respect to the Johnson Amendment, at least technically, the legal effect of the order appears to be minimal," he said.

The amendment in question covers all tax-exempt charities, but its effect on tax-exempt churches, specifically, has been fiercely protested — albeit rarely enforced.

In fact, there's only one known instance of a church losing its tax-exempt status over electioneering: The Church at Pierce Creek in New York, after it took out a full-page newspaper ad opposing Bill Clinton in 1992. After losing its tax-exempt status, the church continued operating and still benefited from tax breaks on its property, Reuters reports.

Opponents of the Johnson Amendment say such punishment is rarely seen because pastors are intimidated into silence.

But in recent years, some churches have participated in "Pulpit Freedom Sunday," when they blatantly violate the Johnson Amendment and all but dare the IRS to take action. The Alliance Defending Freedom, which organizes the event, said that after eight years of public violations, no church had been punished by the IRS for participating.

Meanwhile, as NPR's Jessica Taylor reported Wednesday, many religious leaders — including an overwhelming majority of evangelical pastors — don't believe preachers should make endorsements from the pulpit.

A change to the tax law to actually eradicate the Johnson Amendment would require action by Congress. That could have a dramatic effect on campaign fundraising, if churches and nonprofits were allowed to funnel tax-free money into political campaigns.

But Trump doesn't have the authority to eliminate the law single-handedly. He could tell the IRS to make the amendment a low enforcement priority, which the agency appears to have been doing for years.

According to a Pew survey last year, 14 percent of recent churchgoers heard a presidential candidate being directly supported or opposed from the pulpit. Black Protestants were most likely to have heard such a message — largely in favor of Hillary Clinton or opposition to Trump. At the Rose Garden, Trump celebrated the long history of political activism within black churches, particularly, for "spurring our nation to greater justice and equality."

Religious groups and contraception

The Trump administration says the president would offer "regulatory relief" to organizations that because of religious objections don't want to cover contraception in their employer health plans.

The executive order itself, however, instructs the secretaries of the Treasury, labor, and health and human services to "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections" to the contraception mandate.

The Affordable Care Act requires that health insurance plans cover contraception as part of preventive care for women, at no cost to the employee.

The law had "an automatic exemption for houses of worship, like churches — but not for nonprofits like religious schools and hospitals," NPR's Nina Totenberg explained last year. "Those nonprofits were given a workaround to accommodate their objections, but some say that accommodation still burdens their free exercise of religion."

The workaround involved the organization opting out of the mandate and sending a letter to the government informing them of that decision. At that point, the federal government would step in to cover the contraception instead. (Some religious groups have claimed the law requires coverage of abortion-inducing drugs called abortifacients as well as contraception. But as NPR has reported, the overwhelming medical and scientific consensus is that none of the mandated contraceptive methods cause abortions.)

As Julie Rovner wrote last year, dozens of religious nonprofits claimed "that even the act of notifying the government of their objections (which would, in turn, trigger a requirement for the government to arrange coverage) made them 'complicit' in providing a service they see as sinful."

The issue has been the subject of multiple long-running lawsuits.

Baylor of the Alliance Defending Freedom said "regulatory relief," if provided, would still be inadequate.

"The answer to this problem has been quite obvious all along," Baylor said. "What the administration needs to do is to craft an exemption that prohibits everyone who objects on moral grounds from violating their convictions through the content of their health plan."

Anthony D. Romero, the executive director of the ACLU, says that there's a "potential future battle" over the exemptions.

But for now, the group has retracted its plans to sue, given the lack of concrete change in policy.

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