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New White House Order Rewards Churches, Expands Corporate Religious Rights

Jessica Mason Pieklo & Christine Grimaldi

The president decimated the Johnson Amendment on National Prayer Day.

President Trump on Thursday lifted restrictions on churches and other religious institutions, allowing them to make political endorsements directly from the pulpit while keeping their tax-exempt status. The administration also promised regulatory relief for organizations that raise religious objections to complying with the preventive health services portion of the Affordable Care Act (ACA), otherwise known as Obamacare, and pledged to “protect and vigorously enforce religious liberty.”

Trump’s campaign promises took the form of an executive order that he signed Thursday morning in the White House Rose Garden. Many advocacy groups, however, expected Trump to issue a different executive order in a bid to insulate certain people and businesses from compliance with anti-discrimination laws, especially those to protect LGBTQ people, under the guise of “religious freedom.”

The White House pulled a nearly identical bait-and-switch tactic in early February. LGBTQ advocates expected Trump to announce the religious imposition order at the National Prayer Breakfast following a leaked draft revealing plans to declare gender immutable from birth and roll back adoption rights. Instead, Trump doubled down on his vow to “totally destroy” the Johnson Amendment, a 1954 provision barring tax-exempt organizations like churches from making political endorsements or electioneering on behalf of a specific candidate.

Trump destroyed the Johnson Amendment on National Prayer Day.

The executive order nevertheless includes some concessions to the anti-choice faction frustrated with the pace of ACA repeal in the U.S. Congress, most notably a promise to provide “regulatory relief” to organizations that claim a religious objection to complying with provisions like the no-copay contraception provision, commonly known as the birth control benefit.

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Campaigning Through Preaching

A formal repeal of the Johnson Amendment would require Congress to pass legislation striking it from statute. Instead, a senior administration official confirmed that Trump will again harness the regulatory power of the agencies—in this case, the Internal Revenue Service (IRS)—to navigate around statutes that he doesn’t like.

Trump will give the IRS “maximum enforcement discretion,” the official told reporters on a call from and a briefing at the White House late Wednesday evening.

But reports of persecuting churches for so-called free speech are, by all accounts, overblown. Though some churches give political sermons—sometimes explicitly to protest the Johnson Amendment—the IRS rarely investigates, according to a deep dive by the Atlantic’s Emma Green.

Alan Brownstein, a law professor at the University of California-Davis, told Green that what the Johnson Amendment addresses is not whether religious figures have the right to a political opinion, but whether the institutions they represent should be exempt from taxes if they participate in electioneering.

“Pastors can say whatever they want, as can anyone else,” Brownstein said. “The question is whether a tax-exempt institution can say whatever it wants and retain its tax-exempt status, and whether the pastor as an official can use his or her position in the tax-exempt institution to engage in electioneering.”

Ultimately, Green determined, repealing the Johnson Amendment is about cash—not free speech.

“If the Johnson Amendment were repealed, pastors would be able to endorse candidates from the pulpit, which they’re currently not allowed to do by law,” she wrote. “But it’s also true that a lot more money could possibly flow into politics via donations to churches and other religious organizations. That could mean religious groups would become much more powerful political forces in American politics—and it would almost certainly tee up future court battles.”

Opinions differ among faith-based leaders. Ninety-nine religious and denominational organizations in April wrote to congressional leaders expressing support for the Johnson Amendment. “People of faith do not want partisan political fights infiltrating their houses of worship,” they said, adding that current law protects their “integrity” and “independence.”

Order Appeases Religious Extremists?

Both the timing of the executive order and the anticipated inclusion of preventive services language suggest an attempt to appease the far-right. Anti-choice activists notably voiced disappointment with congressional Republicans over their fledgling efforts to repeal Obamacare and “defund” Planned Parenthood by ending its Medicaid reimbursements.

“We are really feeling betrayed right now,” Operation Rescue President Troy Newman wrote in an email on Tuesday to supporters.

Other conservative groups voiced concern that the administration would continue to defend the birth control benefit, one of the benefits currently defined in the regulatory women’s preventive services guidelines, against religious objectors.

Thursday’s order will likely prove those concerns were overstated.

Despite frustration among the extremist set, before Thursday’s executive order the administration had already reversed course on sweeping federal nondiscrimination provisions under Section 1557 of the health-care law.

Section 1557 prohibits health-care providers and insurers from discriminating in the delivery of health services on the basis of gender. Both the statutory text and regulations enforcing it have served to protect the rights of transgender patients as well as those of pregnant patients, who may face religious imposition hurdles to abortion care even if their fetus isn’t viable. Section 1557 immediately invoked conservative ire, facing lawsuits in federal court arguing the provision amounted to an abuse of authority by the Obama administration.

The U.S. Department of Justice (DOJ) in March stopped defending Section 1557 in a conservative Texas federal district court that had temporarily blocked the the regulations. DOJ on Tuesday moved to pause the ongoing litigation and send the regulations back to the U.S. Department of Health and Human Services (HHS)—presumably to gut them.

The preventive services language in the new executive order, then, could provide further cover for Trump and the GOP, while speeding up the regulatory war against the birth control benefit and other women’s preventive services that live in regulations under a sub-agency of HHS. A wide range of vulnerable and often intersecting populations, including transgender people, pregnant people, and people with low incomes, rely on the benefits writ large and the birth control benefit in particular.

The timing could also be related to other administration staffing. Trump was working on fleshing out key cabinet appointees and hiring lower-level staff that would support, and help defend, the order.

Trump last Friday installed former Americans for Life President Charmaine Yoest as the head spokesperson for HHS. Yoest has made a career out of disparaging and smearing LGBTQ people and co-authored a blog full of transgender slurs that referred to medical care for transgender people asa joke.”

And Trump will reportedly appoint Teresa Manning, who believes that “contraception doesn’t work,” to helm the HHS office charged with administering some $286 million in federal family planning funds for people with low incomes.

One key position that remains vacant is that of solicitor general, the attorney tasked with defending the administration in cases that come before the U.S. Supreme Court.

Trump’s pick for the top job is Noel Francisco. Trump named Francisco as principal deputy solicitor general in late January. He is currently serving as a senior adviser in the DOJ.

Before his nomination, Francisco represented numerous religiously affiliated organizations challenging the accommodation process to the birth control benefit in the ACA. The Supreme Court last year punted on deciding whether or not the accommodation process violated the Religious Freedom Restoration Act (RFRA), the federal law used in the Hobby Lobby v. Burwell case to greatly expand corporate religious rights.

The cases in which Francisco was involved remain stalled in the federal appellate courts as the Trump administration works to unwind the benefit. This executive order will allow them to do just that.

Francisco was, until his nomination, a member of the Lumen Christi Institute, a conservative Catholic organization that advocates for “natural law”a philosophy that states fundamental rights are derived from nature and God. Natural law proponents argue for fetal “personhood” and against death with dignity laws.

Some anti-abortion extremists have used natural law to invoke the “justifiable homicide” defense in anti-abortion violence, including that of Scott Roeder, who murdered Dr. George Tiller in 2009.

Associate Supreme Court Justice Neil Gorsuch is also a natural law proponent who was instrumental as a federal appellate court judge in advancing corporate religious rights in his opinion in the Hobby Lobby case. Conservatives like Yoest, who advised Trump in the nomination process, view Gorsuch as a reliable vote in upholding religious imposition laws.

Effect of Order Remains Uncertain

While Thursday’s order will likely be a trimmed down version of the “license to discriminate” that advocates have feared, there’s little reason to believe that the administration’s efforts to expand RFRA-type laws will end here. An earlier leaked draft of a religious imposition order would have built off the expansive definition of corporate religious rights created in Hobby Lobby v. Burwell to broadly define religious organizations as “any organization, including closely held for-profit corporations,” who can benefit from the protections afforded in the executive order.

Given the vague language promised for Thursday’s order around providing “regulatory relief” for religious objectors, the scope of the order could be broad enough to encompass most for-profit employers.

The previous draft also protected the tax-exempt status of any organization that “believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”

Thursday’s order specifically addresses the restrictions built into the Johnson Amendment, according to the senior administration official. But that language is as vague as the provisions attacking the ACA’s preventive health services. Trump could wield subsequent executive action to build on the order and what religious liberty looks like under his administration.

Should that happen, advocates are ready to up their aggressive campaign for civil rights.

The American Civil Liberties Union (ACLU) pledged to file a lawsuit immediately challenging a religious imposition order, while other groups like the Human Rights Campaign and the National Center for Lesbian Rights made similar assurances.

“The ACLU fights every day to defend religious freedom, but religious freedom does not mean the right to discriminate against or harm others,” Louise Melling, deputy legal director of the American Civil Liberties Union, said in a statement. “If President Trump signs an executive order that attempts to provide a license to discriminate against women or LGBT people, we will see him in court.”

National Center for Lesbian Rights Policy Director Julianna S. Gonen delivered a warning that “our laws do not allow the use of religious beliefs to harm others.”

“It is wrong to let government actors or officials pick and choose who they will serve based on their own personal religious beliefs. You cannot opt out of treating LGBTQ community members, women, and our families with the dignity and respect we deserve. One set of far-right religious beliefs cannot be imposed on all or dictate whom we love and marry; whether, when, and how we have children; or what we can do or who we can be based on our sex or gender,” Gonen said in a statement.  

“We have not come this far to let one man take us backward with one stroke of a pen.”

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