On May 4, 2017, the National Day of Prayer, President Trump issued his much anticipated Executive Order titled “Promoting Free Speech and Religious Liberty.” Initial reactions span a wide spectrum, with some calling it meaningless, some warning that it is toxic and will result in dreaded “dark money” for political campaigns, and still others leveraging it as a cry for entire repeal of the nonprofit political campaign ban (sometimes known as the Johnson Amendment) as unconstitutional.
The Executive Order contains four key sections: (1) an introductory policy pronouncement; (2) an IRS directive to stay away from religious organizations’ and individuals’ speech spoken “from a religious perspective”; (3) a multi-agency directive to address conscience-based objections to Affordable Care Act mandates; and (4) a U.S. Attorney General directive to issue religious liberty guidance for all federal agencies. All four sections convey a clear message that religious liberty matters, presumably with the goal of rolling back Obama era constraints on religious liberty.
1. Make Religious Liberty Great Again
The opening policy section may be just that—mere words about policy. But the verbiage used unmistakably communicates that religious liberty should be treated as a priority, not to be diminished or impaired by the government. For example, as part of the Executive Branch, federal administrative agencies are to “vigorously enforce” our country’s “robust protections of religious freedoms,” particularly given our founders’ vision for religious voices as “integral to a vibrant public square.”
The policy section further calls for according legal protection to practicing believers “without fear of discrimination or retaliation” by the government, as Americans’ “first freedom.” Believers shouldn’t just be free to believe in religion, they must be able to “exercise religion and participate fully in civic life without undue [government] influence.” Strong words indeed! Are they carefully worded to signal follow-up action or, in the immortal words of Shakespeare’s Macbeth (then borrowed by Faulkner), are they “full of sound and fury, signifying nothing?” (The ACLU seems to believe the latter, having decided not to pursue its previously expressed intent to sue.)
2. Make the IRS Greatly Respect Religious Speech, Even When Political
The second section hones in on the IRS (as part of the U.S. Treasury Department), requiring it not to “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.” This language brings to mind pulpits and other public platforms, validating religious leaders’ rights to freely speak out on issues—even if such speech includes political campaign activity—as part of their spiritual and moral authority.
Some would have liked this restraining directive to have gone further, such as to encompass all nonprofit organizations (particularly considering the political campaign ban’s dubious constitutionality) or to protect private businesses faced with liability for declining to provide services based on their sincerely held religious beliefs. However, the Order is narrower in scope.
The Order further requires that such type of speech not have “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 IRS]”. Is this too confusing? Perhaps, and then again, perhaps not. The IRS has issued guidance addressing what speech amounts to prohibited political campaign participation, and such guidance presumably still applies in light of this qualifying language. But for the last several years, the IRS has left religious houses of worship and their leaders alone, refusing to enforce the political campaign ban against them (for both technical legal and practical reasons). Numerous churches have participated in now-annual “Pulpit-Free Sundays,” openly flouting the ban. Still others routinely disregard it, as evidenced by all-too-frequent political candidate appearances at worship services during last year’s election cycle.
The Order thus seems to convey the following message to the IRS: Stay the course, and don’t even think about enforcing the Johnson Amendment against religious organizations or their leaders. Religious organizations and their leaders may therefore feel free to speak about political candidates, at least from the legal perspective. (Whether they should or not from a practical perspective is an entirely different matter.) For other nonprofits, however, the ban continues—with IRS enforcement to be expected.
Keep in mind that it is ultimately up to other federal government branches to address the political campaign ban’s legal enforceability, and a subsequent presidential administration may direct the IRS differently. Congress could invalidate the ban through repealing this legislation. Alternatively, the U.S. Supreme Court could strike it down as unconstitutional. Our law firm’s prior blogs address such considerations within the context of the IRS’s constitutionally questionable “facts and circumstances test” for politically-related advocacy (December 2016 blog) and the proposed federal Free Speech Fairness Act (October 2016 blog). And should the legal status quo continue but this Order be rescinded by a subsequent U.S. President, churches and religious organizations could find their tax-exempt status in jeopardy.
Taking a lightning speed cue from this muddle, the Freedom from Religion Foundation has filed a complaint for declaratory and injunctive relief, claiming that the Order “privileges religion over nonreligion” and worrying that it will result in churches gone amuck with excessive political activism. FFRF’s complaint misses the point that the First Amendment expressly protects religious liberty. The lawsuit thus begs the question, not answered in the Order, of whether the political campaign ban is unconstitutional under the First Amendment’s Free Exercise Clause (applicable only to religious groups, so that they may exercise religious liberty) or its Free Speech Clause too (applicable to all nonprofits). Many would argue that the ban is unconstitutional under both clauses, and that may well be the correct constitutional answer. But focusing on constitutional religious liberty protection seems entirely appropriate—and since when did “nonreligion” garner any constitutional rights?
3. Great Respect for Conscience-Based ACA Objections
The third section may prove extremely important in terms of follow-up steps, especially in light of recent litigation involving religious liberty objections by organizations like the Little Sisters of the Poor and Hobby Lobby to mandated contraceptive-related insurance coverage. The Order directs the Treasury, Labor, and Health & Human Services Secretaries to “consider issuing amended regulations” to address such conscience-based objections. Such validation for conscience-based objections is certainly laudable. Time will tell what happens next, as this presidential directive plays out through these agencies.
4. Great Expectations
On a similar note, the Order concludes by directing the U.S. Attorney General to issue guidance “interpreting religious liberty protections” to “guide all [federal] agencies.” This language is incredibly broad in scope. What fruit will it bear? Will the Trump Administration follow through in deed, not just in word, with restoring impaired religious liberty protections? How will Congress respond, if at all? Consistent with our country’s history, our citizens and leaders continue to grapple with the contours of religious liberty and its plethora of implications.