Trump's executive order on religious liberty doesn't come close to his campaign promises

On Thursday — the National Day of Prayer — President Donald Trump made a move intended to satisfy his repeated promises to conservative Christians from the campaign trail. Flanked by members of the clergy in the Rose Garden, Trump signed the highly anticipated Executive Order on Promoting Free Speech and Religious Liberty.

The order proclaims that the executive branch will “vigorously enforce Federal law's robust protections for religious freedom” and proposes strengthening of protections for companies and organizations that claim a conscience-based exemption to paying for contraceptive care.

But its longest and most substantial portion deals with the political speech of religious leaders and organizations. Here is the key sentence:

In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does 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, 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 by the Department of the Treasury.

Currently, organizations registered with the IRS as tax-exempt under the 501(c)(3) designation aren’t permitted to participate in political campaign activity, which includes endorsing or opposing candidates from the pulpit and contributing money to campaigns. Trump's executive order says they can speak publicly on "moral or political issues from a religious perspective" without risking their tax exempt status — which in reality is not a substantial change from the status quo.

That’s because the order stipulates that it pertains only to activity of “similar character” to speech that isn’t already restricted. (Some speculate that this could be intended to compare speech from religious organizations to similar speech from secular organizations, but the wording of the order leaves this vague.) The IRS has issued guidelines for tax-exempt organizations on what falls under the “political campaign activity” category. So, this order doesn’t allow restrictions on political speech from religious people and organizations to be expanded. But it doesn’t explicitly contract them, either.

The order overall is far weaker than many religious conservatives had been hoping it would be. It’s also a far cry from both a draft of the order leaked in February, which included strong protections for people and organizations claiming religious objections to same-sex marriage, premarital sex, abortion, and trans identity.

And though the language around matters relating to the Johnson Amendment remains consistent between the draft and final order, both abandon Trump’s campaign promise to “totally destroy” the Johnson Amendment, which remains on the books. The order simply instructs IRS officials to respect the freedom of individuals and organizations to participate in religiously-grounded political speech to the “greatest extent practicable and to the extent permitted by law.”

The order is so weak, in fact, that the ACLU issued a statement calling Trump’s campaign promise “fake news” and the executive order an “elaborate photo op with no discernible policy outcome.” The statement said that at least for now, the organization won’t be filing an lawsuit.

The executive order does not fulfill one of Trump’s major promises — to “totally destroy” the Johnson Amendment

This section of the executive order was widely expected to loosen restrictions imposed on religious organizations by the 1954 Johnson Amendment, which prohibits all 501(c)(3) organizations (including many types of nonprofits that are not religious in nature) from “directly or indirectly participating in, or intervening in, any political campaign on behalf of or in opposition to any candidate for elective public office.”

In the briefest terms, the Johnson Amendment keeps religious and many other tax-exempt organizations from endorsing or oppose specific candidates for public office, as well as contributing to campaigns. Those that do risk losing their tax-exempt status.

Photo by Mark Wilson/Getty Images

Trump has repeatedly promised to abolish the Johnson Amendment, both before and after his election. But the executive order isn’t close to abolishment. Because the Johnson Amendment is part of the tax code, only Congress could repeal it, or it could be struck down in court.

Instead, the executive order instructs the Treasury Department (of which the IRS is a bureau) to not penalize individuals, congregations, or other organizations for “speech” on moral or political issues “from a religious perspective” — while maintaining the caveat that the speech must not participate or intervene in a candidate’s political campaign. The executive order makes no mention of financial contributions to political campaigns.

A draft executive order leaked in February contained virtually identical language around political speech by religious groups. Writing for Bloomberg BNA on that draft, Joseph J. Ecuyer also pointed out the vague language and seeming weakness of the instruction to the IRS. “Perhaps this is just putting the IRS on notice to not enforce the prohibition against intervention in political campaigns,” he wrote. “Right now, it’s unclear.”

The summary document distributed to religious leaders at the White House on Wednesday night suggested that the executive order would alleviate the burden of the Johnson Amendment, which “prohibits religious leaders from speaking about politics and candidates from the pulpit” — a statement which partly mischaracterizes the Amendment. But the actual text of the executive order makes no statement about candidate endorsement.

At most, the executive order gives IRS officials explicit permission to do what they already do: rarely enforce the Johnson Amendment.

The IRS’s own guidelines explicitly allow statements on political or moral issues, while prohibiting direct campaigning on behalf of political candidates

The IRS issued guidelines in 2006 regarding what it considers to constitute political campaign intervention.

Activities like endorsing candidates, contributing to campaign funds, making public statements of position in reference to campaigns, and providing use of an organization’s assets and facilities to one candidate without the opportunity being offered to all candidates are restricted activities for 501(c)(3) organizations.

Under Trump’s executive order, these activities are all still technically prohibited, since they have “ordinarily been treated as participation or intervention in a political campaign.” However, IRS officials could choose to not enforce those rules, as many have done in the past.

The executive order also only explicitly protects statements on moral or political issues, which the IRS calls “issue advocacy” and considers to be beyond the Johnson Amendment’s purview.

In its 2006 guidelines, the IRS distinguishes “issue advocacy” from political campaign intervention, outlining a set of circumstances that it takes into account when evaluating whether a 501(c)(3) organization has overstepped its boundaries. A church should not be stripped of its 501(c)(3) status, for instance, if it consistently advocates for the rights of immigrants or against abortion.

But a church would risk action if it invited a specific candidate to speak at its services without inviting the other candidates, or if the pastor specifically endorsed a candidate during a sermon. And a pastor who’s never preached on immigration reform but suddenly starts pointedly doing so weeks before an election could theoretically run the risk of losing the church’s tax-exempt status as well.

Opponents of the Johnson Amendment argue that the amendment may be unconstitutional and that this threat, though rarely enforced, has a “chilling effect” on what clergy feel comfortable saying from the pulpit. However, the right to simply speak up on moral and political issues isn’t denied by the Johnson Amendment or the IRS’s interpretation of it.

And this matches common sense: Religious organizations speak up on moral issues as a matter of course. In fact, a Pew survey found last August that nearly two-thirds of recent churchgoers had heard clergy speak out about at least one social or political issue. Many of these moral issues overlap with political issues, and churches may even participate in lobbying activity, as long as it constitutes a “insubstantial” part of their activity. It’s part of being a religious organization.

The executive order also mentions protecting individuals who speak on political matters from a religious viewpoint. The IRS is clear about individuals’ First Amendment rights (even religious leaders), stating that leaders of organizations can speak for themselves on political matters and issues of public policy as individuals. They are only restricted from making “partisan comments in official organization publications or at official functions of the organization.” A minister can publicly express support for a candidate (and many have), as long as she makes it clear that it is her statement is as an individual, and not on behalf of her church, in a church publication, or at a church function.

The executive order only explicitly protects speech that is technically already protected, and specifically stipulates that any speech that might be ordinarily considered political campaign intervention still ought to be treated as such. It may strengthen protection in the gray areas of issue advocacy, if individual IRS officials choose to interpret it that way. And it doesn’t expand or contract protections. It merely makes explicit what’s on the books, while also giving outright clearance to the IRS to exercise lenience.

The executive order doesn’t satisfy liberals or conservatives

Many conservatives, centrists, and liberals are not pleased with the executive order. Some conservative opposition comes because the order doesn’t offer strong support for individuals and organizations claiming religious exemptions from matters relating to same-sex marriage, premarital sex, abortion, and trans identity, as the draft order would have. The specific provisions are cut down to allowing organizations to opt out of the mandate to provide contraceptives through employer insurance.

But the entire executive order came under fire across the political spectrum, with criticism for its treatment of the Johnson Amendment as well.

After a summary of the order was released on Wednesday night, the conservative Alliance Defending Freedom — a key opponent of the Johnson Amendment — issued a statement that sharply criticized the executive order, with senior counsel Gregory S. Baylor saying that it “recalls those campaign promises but leaves them unfulfilled.”

The ADF was involved in drafting last fall’s H.R. 781, a.k.a. the Free Speech Fairness Act, an amendment to the tax code which would allow pastors to endorse candidates and make political statements in the “ordinary course of the organization’s regular and customary activities.” The bill, which was introduced to the House by Rep. Steve Scalise (R-LA) and was referred to committe, would not have permitted participation in campaigns or contributions to political activities and candidates. (A companion bill, S.264, was introduced in the Senate.) The ADF also organizes the annual Pulpit Freedom Sunday, a protest movement against the Johnson Amendment.

Conservative columnist David French strongly criticized the executive order in National Review, and its editorial board called it “a vague and unworkable mishmash of executive direction that has the potential to make the problem worse.”

A number of prominent religious conservatives took to Twitter to criticize the order as well:

Following the order’s signing, the centrist Baptist Joint Committee for Religious Liberty executive director Amanda Tyler released a statement accusing the order of being “largely a symbolic act, voicing concern for religious liberty but offering nothing to advance it. Worse, it is further evidence that President Trump wants churches to be vehicles for political campaigns.”

Nearly 80 percent of Americans say they do not favor political endorsements in church. And in April, 99 Christian, Jewish, Muslim, Hindu, and other religious groups sent a letter opposing any move to abolish the amendment to congressional leadership.

Yet Trump’s opposition to the amendment was often greeted with applause and support in meetings with religious leaders, where he said it unnecessarily restricted their ability to speak freely. However, the reality of the Johnson Amendment — and any move to get rid of it or reduce it — is more complicated than statements around it might suggest.

The Johnson Amendment repeal has consistently been one of Trump’s major promises to religious voters

At the signing of the executive order, President Trump’s statements echoed rhetoric that had been common during his campaign, saying that “for too long the federal government has used the state as a weapon against people of faith,” and that "we are giving our churches their voices back." Trump said that no one should be “censoring sermons or targeting pastors,” and that now, with the provision of the executive order, religious leaders were in a position to “say what they wanted to say.”

"We will not allow people of faith to be targeted, bullied or silenced anymore,” the president said.

The White House tweeted similar sentiments, saying that religious people were attacked for following the tenets of their faith during the Obama administration:

This is consistent with the way the Trump campaign and administration has characterized the Johnson Amendment: as a broad silencer of and odious restriction on thousands of clergy and religious people. At his first National Prayer Breakfast on February 2, President Trump reiterated his campaign promise to repeal the Johnson Amendment:

Our republic was formed on the basis that freedom is not a gift from government, but that freedom is a gift from God. It was the great Thomas Jefferson who said the God who gave us life gave us liberty. Jefferson asked, “Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?” Among those freedoms is the right to worship according to our own beliefs. That is why I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution. I will do that. Remember.

The promise to “totally destroy” the amendment seems to have been introduced on June 22, 2016, when as a candidate Trump met with hundreds of evangelical leaders in a closed-door meeting in New York City. During that meeting, Trump made two promises to woo evangelicals: installing conservative justices in the Supreme Court and abolishing the Johnson Amendment, because religious leaders “have the right to speak.”

Trump incorrectly stated during the meeting that Johnson passed the amendment while president. The amendment was passed by Congress in 1954, and Johnson, of course, didn’t serve as president until 1963. In 1954, Johnson was a senator, and he proposed this change to the tax code in part to keep certain tax-exempt organizations from endorsing or opposing candidates and boost his re-election chances.

This issue resurfaced in Trump’s acceptance speech at the Republican National Convention on July 21, in which he represented it as “an amendment, pushed by Lyndon Johnson many years ago, [that] threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views." (We fact-checked his speech here.)

Then in a five-minute video that played in a number of evangelical churches on November 6, Mike Pence made a pitch to congregants for their vote, citing conservative Supreme Court appointments and a promise to repeal the Johnson Amendment.

Here is how Pence describes it in the video:

The Johnson Amendment has literally been on the books since the 1950s and it essentially threatens tax-exempt organizations and churches with losing their tax status if they speak out against important issues facing the nation from the pulpit.

Pence goes on to enumerate three moments in American history in which pulpits stood against tyranny: against King George III’s oppressive rule prior to the American Revolution, against the practice of slavery, and in favor of civil rights.

It’s worth noting that there are plenty of examples of pulpits standing for said tyrannies as well, a matter Pence does not address. It’s also worth pointing out that the Johnson Amendment was passed during the early days of the civil rights movement, which complicates Pence’s third example as a reason to get rid of it.

Pence’s video has been removed from Vimeo but can be viewed on YouTube, and as of this writing it has been watched over 234,000 times.

The Johnson Amendment doesn’t only target churches

Nearly a million and a half organizations in the US are registered as tax-exempt, many of which are 501(c)(3). As of last year, 312,373 of those organizations are religious congregations. As the IRS interprets the Johnson Amendment, tax-exempt organizations — those that fall under the 501(c)(3) designation — include those which are “religious, educational, charitable, scientific, literary, testing for public safety, to foster national or international sports competition, or prevention of cruelty to children or animals organizations.” These activities are permitted for charities:

The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.

Incidentally, both the Donald J. Trump Foundation and the Clinton Foundation are 501(c)(3) organizations.

But the Johnson Amendment has become a particular target of the conservative Alliance Defending Freedom, which argues it is unconstitutional and has a chilling effect on houses of worship and religious organizations. A blog post on the organization’s website from October 31, 2016, mirrors Pence’s statement:

Historically, churches frequently spoke for and against candidates for government office. Such sermons date from the founding of the United States, including those against Thomas Jefferson for being a deist and sermons opposing William Howard Taft as a Unitarian. Churches have also been at the forefront of most of the significant societal and governmental changes in our history, including ending segregation and child labor, and advancing civil rights.

The ADF argues that the amendment unconstitutionally restricts the First Amendment rights of pastors and churches as well as the free exercise clause in the Constitution, which states that Congress cannot make laws that keep people from freely exercising their religion. (That argument that is disputed by others.)

The ADF’s blog post concludes on a surprising note:

After the 1954 Johnson Amendment, churches faced a choice: speak freely on all issues addressed by Scripture and potentially risk their tax exemption, or remain silent and protect their tax-exempt status. Unfortunately, many churches have silenced their speech, even from the pulpit. Ironically, after 60-plus years of the IRS strictly interpreting the amendment, there is no reported situation where a church lost its tax-exempt status or was punished for sermons delivered from the pulpit. Nonetheless, the law remains unchanged and many churches remain silent due to the IRS’s interpretation of the amendment.

That is, according to the ADF, the Johnson Amendment has never actually been used to strip a congregation of its 501(c)(3) status because of sermons delivered from the pulpit. The ADF’s “Pulpit Freedom Movement” is an attempt to protest the amendment by having pastors preach specifically political sermons.

Yet last year’s Pew study found that about two-thirds of regular churchgoers had heard political statements from the pulpit. The highest percentage of these were black Protestants, 28 percent of whom heard clergy support for Hillary Clinton and about 20 percent of whom heard ministers oppose Donald Trump. By contrast, about 4 percent of white evangelicals heard clergy support a presidential candidate, while 7 percent heard statements against a candidate.

In a rare case, the Johnson Amendment was used in 1995 to strip an upstate New York church of its tax-exempt status after the church placed a full-page ads opposing Bill Clinton in two newspapers during the 1992 election — a penalty that was upheld in federal court.

In 2014, Houston Mayor Annise Parker subpoenaed five sermons from churches in her city. After widespread outcry, Parker dropped the subpoena, saying that it had been overly broad. Interestingly, this event is referenced in the successful 2016 Christian film God’s Not Dead 2 — in which a pastor character is hauled off to jail for refusing to turn his sermons over to the authorities for approval, rather than merely having his church’s tax-exempt status revoked — and teased as the probable plot for the inevitable God’s Not Dead 3.

Yet the case in Houston rattled congregations across the country, and clergy are understandably reticent to submit their sermons for approval every week. It’s easy to reason that this narrative is in the background of Trump’s apparent interest in the law too.

The argument to repeal the amendment rests on the idea that churches and other religious congregations are restricting their speech for fear of something that is inconsistently enforced, at best. While this is absolutely plausible, the extent to which it happens is understandably hard to substantiate or quantify. On Thursday, some Christian conservatives took to Twitter to suggest it’s at best a red herring:

There are a few other misleading matters in arguments such as Trump’s and Pence’s, which frequently rest on statements about the Revolution, slavery, and civil rights. As it’s interpreted by the IRS, the Johnson Amendment would never have kept clergy from preaching consistently that slavery is a violation of God’s law. It would have just kept clergy from endorsing Abraham Lincoln from the pulpit or on behalf of their congregations, though they’d be free to speak out on his behalf as private citizens. And, again, using the civil rights as an example is strange, since the amendment was in place during the period when many influential church sermons on civil rights were delivered.

(The churches that could potentially risk their exemption are those which don’t consistently preach against these matters, except in close proximity to an election.)

The fact that some churches did show the Pence ad is an indicator of the state of the enforcement of the Johnson Amendment. Under the IRS’s interpretation, 501(c)(3) organizations are allowed to provide a forum for candidates, which “is not, in and of itself, prohibited political activity,” so this may technically fall under that provision. (This is only permitted if those churches also offered a similar slot to the Clinton campaign.)

The ongoing Johnson Amendment debate has implications that stretch far beyond churches

There are several interesting implications of this ongoing debate about abolishing the amendment.

First, it articulates what the Trump’s administration thinks is important to the evangelical voter. The campaign correctly identified that issues around abortion and religious liberty, and their status on the Supreme Court, were a driving force behind many voters’ choices. Indeed, the confirmation of Neil Gorsuch as a Supreme Court justice was a huge win for conservative voters who gambled on Trump.

But while nearly 80 percent of Americans say they do not favor political endorsements in church, there remains a persistent belief among many Trump supporters, including his chief strategist Steve Bannon, that the influence of Christians on American culture is in decline, and that this must be counteracted. It seems Trump’s administration is attempting to propose concrete action on this, in at least one way, by suggesting that the Johnson Amendment is to blame for churches’ declining influence. At the meeting of evangelical leaders in June 2016, Trump spoke further:

And I say to you folks, because you have such power, such influence. Unfortunately the government has weeded it away from you pretty strongly. But you’re going to get it back. Remember this: If you ever add up, the men and women here are the most important, powerful lobbyists. You’re more powerful. Because you have men and women, you probably have something like 75, 80 percent of the country believing. But you don’t use your power. You don’t use your power…

You used to go to church, and you know, when I’d go there. … It’s much different today. I know, as an example, the young people aren’t going as much.

But we have to bring that back. We have to bring those values back. We have to bring that spirit back. And in a way, it’s been taken away from you by the federal government and by these horrendous things that have been allowed in the past. But just remember this: You are the most powerful group in this country. But you have to realize that. You have to band together. You have to band together. If you don’t band together, you’re really not powerful. You have a powerful church. I see it. I see some of these incredible pastors and ministers and people that speak so brilliantly. And I see it. But they’re great within their audience, but then outside they don’t have it. You have to band together as a group. And if you do that, you will bring it back like nothing has ever been brought back.

Power, as the Trump campaign sees it, is the greatest good — and it’s what has been stolen from churches. The way to please churches is to bring power back.

Photo by Win McNamee/Getty Images

Because most 501(c)(3) organizations are not religious congregations, any complete abolishment of the Johnson Amendment would also lift restrictions on other nonprofit organizations with 501(c)(3) designations that wish to endorse a candidate. Universities and colleges, sports organizations, entities that promote scientific or literary causes, and charitable foundations would be free to conduct activities that support a political campaign and endorse candidates.

Trump’s murky executive order is far from a Johnson Amendment abolishment, though — and its critics on the right and left see it mostly as the administration waving shiny objects to pacify some religious conservatives, especially the white evangelicals who form Trump’s enthusiastic base.

Yet the debate has hardly ended. The implications for both religious groups and political campaign speech and funding are substantial, and for now, still uncertain.

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