Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, May 4, 2017

Quick Reaction on the Trump Religious Liberty EO

President Trump issued his executive order on religious liberty today, with a good-sized rollout featuring the Little Sisters of the Poor etc. There was much fear on the left and hope on the right. However, the order itself has little or no effect in concrete terms. It avoid issues concerning LGBT rights and religious liberty; it concentrates only on the Johnson Amendment and the contraception mandate.
 
The order's first section is a general statement in favor of religious liberty, which will be comforting to religious conservatives but has no operative effect.
 
On the Johnson Amendment--concerning withdrawal of tax benefits for organizations that endorse a candidate for office (e.g. through an official statement by a clergy leader)--all the order does is forbid IRS action against a religious organization in a situation that "has not ordinarily been treated" as a case of endorsing a candidate. In other words, don't treat religious organizations any worse than secular organizations. But there's no pattern of cases in which that's happened. This just confirms the status quo, under which the IRS has not been going after churches or anyone else for candidate endorsements. In theory, it might even allow the IRS to start going after both equally--although that seems very unlikely in this adminstration.
 
On the contraception mandate, all the order says is that HHS and other relevant agencies should "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections." The Supreme Court already ordered something similar in the Zubik/Little Sisters case. And Trump's order gives no direction on what the the new regs should do. The agencies will likely give the objectors some relief, assuming that his agency appointees set the course. But the executive order adds little to that.
 
Religious conservatives will take comfort from the generally positive attitude toward their religious liberty claims. But in its operative effects, this nowhere goes out on a limb for them. The issues concerning LGBT/religious-liberty conflicts remain, and this gives little indication Trump will go out on a limb on those. (Admittedly, he could be trying to take smaller steps first.)
 
ADDENDUM: It should be noted that in the Rose Garden ceremony, the President stated, with no tone of irony in his voice, that "We will never ever stand for religious discrimination. Never ever." This from the President whose travel-ban executive order began with the campaign pledge (never withdrawn) of a "total and complete shutdown of all Muslims entering the United States."

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