President Donald Trump concluded Thursday’s National Day of Prayer with more than just a pageant of platitudes. Joined in the White House Rose Garden by several nuns of the Little Sisters of The Poor—who famously sued the Obama administration over the Affordable Care Act’s contraception mandate—Trump signed an executive order “promoting free speech and religious liberty.” The order is mercifully less sweeping than many had feared, but it still opens the door to policies that will erode the wall between church and state.
The order did not include language from a previously leaked draft that would have exempted individuals with specific conservative religious views from a variety of anti-discrimination laws. But the order nonetheless represents the Trump administration’s strong support for the conservative Christians who helped bring him to power. At its thematic heart, it affirms the notion that the “fundamental right to religious liberty” is “Americans’ first freedom,” as if all other freedoms—such as equal protection under the law—are secondary.
A lot of the language in the order is vague, but it still offers important clues. The president directed the Treasury, Labor, and Health and Human Services departments to “consider issuing amended regulations” to address the religious objections to the contraception mandate made by groups like Little Sisters of the Poor. It’s not clear, however, if this extends beyond what the Supreme Court already told the government to do last year.
In addition, Trump directed Attorney General Jeff Sessions to “issue guidance interpreting religious liberty protections in Federal law.” This provision signals an even greater tolerance of discriminatory religious views under the Religious Freedom Restoration Act, according to Liz Reiner Platt, director of the Public Rights/Private Conscience Project at Columbia University. Passed in the early 1990s with bipartisan support, RFRA was originally intended to ensure that the government had a “compelling interest” to enact laws that violated a person’s religious beliefs. It has since become a legal weapon used by members of the religious right, often against women and LGBT individuals. The law was the foundation of the Supreme Court’s 2014 Hobby Lobby ruling, which held that it was unconstitutional to require family-owned corporations to cover insurance for contraception if it violated their sincerely held religious beliefs.
The order appears to instruct the Department of Justice to “decline to enforce federal law when it believes doing so would burden religious freedom,” says Platt. For example, the DOJ might say that it violates the RFRA to enforce the Pregnancy Discrimination Act against an employer who has a religious objection to employing an unmarried pregnant woman, or a woman having a child with her same-sex partner.
The RFRA has already been used in this manner. Last year, a district court ruled that a Michigan funeral home was protected by the RFRA when it fired a transgender woman. The court said allowing her to express her gender identity would “impose a substantial burden on its ability to conduct business in accordance with its sincerely held religious beliefs.” In that case, the Equal Employment Opportunity Commission defended the woman, Aimee Stephens, but it’s not hard to imagine agencies taking the opposite view under the Trump administration, particularly with this new order.
Thursday’s executive order also took aim at the Johnson Amendment, a 1954 law prohibiting tax-exempt churches and nonprofits from participating in electioneering. On the campaign trail and since taking office, Trump has promised to “totally destroy” the law, which some religious organizations argue has had a chilling effect on their ability to speak about politics in public. On Thursday, he directed the IRS not to take “any adverse action” against an individual or church that speaks about moral or political issues from a religious perspective.
It’s difficult to predict the actual impact of this move, given that Trump’s order can’t change the law. Furthermore, only one church has ever lost its tax-exempt status for electioneering since 1954. Some churches have actually been taunting the IRS since 2008 by recording political sermons and sending them to the agency. (If anything, these actions, led by the Alliance Defending Freedom and known as Pulpit Freedom Sundays, have demonstrated that churches are not under threat.)
But, as The Atlantic’s Emma Green pointed out last year, efforts to repeal the Johnson Amendment are far more about campaign contributions than they are about free speech. This was conveniently made explicit on Thursday, during a House hearing on the Johnson Amendment. Tony Perkins, president of the Family Research Council, and Christiana Holcomb, a lawyer with the Alliance Defending Freedom, testified in favor of the Free Speech Fairness Act, a bill that would remove restrictions on nonprofit electioneering and allow tax-exempt organizations to use some of their funds to support political campaigns.
Rather than fix a free speech problem, a repeal of the Johnson Amendment would create new campaign finance worries. Political donors could theoretically funnel funds to nonprofit religious organizations, which don’t need to disclose their donors. In addition, donations to non-profits are tax-deductible. If churches are able to engage in electioneering, political contributions can become tax-deductible.
“This hearing is not about free speech,” Democratic Congressman Raja Krishnamoorthi of Illinois said at Thursday’s hearing. “It is about a scheme to flood political campaigns with dark money. Let’s be clear. Current law does not prevent churches or charities from speaking out on any issues.”
In testimony against the Free Speech Fairness Act, Rabbi David Saperstein, former director of the Religious Action Center, said that lifting these “partisan politicking restrictions are not just bad legal policy and bad public policy, but bad religious policy as well.”
In fact, most Americans think it’s gauche for churches to engage in electioneering. According to the Public Religion Research Institute, 71 percent of Americans oppose letting tax-exempt churches and places of worship endorse political candidates, and only 22 percent support such a policy. Support for the Johnson Amendment cuts across political parties and religious groups. In a February poll conducted by the National Association for Evangelicals, 89 percent of evangelical leaders said they don’t think pastors should endorse politicians from the pulpit.
However, some conservative commentators have already said Trump’s executive order did not go far enough. Still, it’s clear what direction the Trump administration is taking. Tony Perkins, president of the ultra-conservative Family Research Council, praised the order in a statement Thursday. “This step today starts the process of reversing the devastating trend set by the last administration to punish charities, pastors, family-owned businesses and honest, hard-working people simply for living according to their faith,” he said. “The open season on Christians and other people of faith is coming to a close in America.”