Executive Order on Free Speech Falls Short

Thursday, May 4, was the National Day of Prayer. The Trump administration took the opportunity to invite prominent religious leaders to the White House for the signing of an Executive Order on Free Speech and Religious Liberty.

Reportedly, Vice President Pence has been pushing behind the scenes to resurrect the issue after an earlier draft was spiked in February. Washington insiders blame Ivanka Trump and her husband, Jared Kushner, for leaking a draft of the executive order to hostile press and forcing the president to distance himself from it.

More than three months later, the resurrected Order doesn’t hold a candle to the earlier version. The provisions that most raised the hopes of the religious leaders and raised the hackles of progressives, have been stripped out and replaced with promises that others will write them.

The meat of the Order is found in the first four sections. These address, 1) General Policy, 2) Religious and Political Speech, 3) Conscience Protections and the HHS Mandate, and 4) Guidance from the Attorney General.

Section 1 starts off well, “It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.” It explicitly recognizes that “Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.”

These are welcome words. Since 2009, the Obama Administration began to consistently use the phrase, “Freedom of worship,” in place of the First Amendment’s language of the “free exercise of religion.” This subtle change was designed to undermine protections for religious citizens in government positions and in public businesses. It worked.

After eight years of pushing this new and false view of the First Amendment, we have seen business owners told what they may or may not say to their customers regarding moral and religious beliefs. We have seen government employees and elected officials fired for religious reasons or commanded to speak and act in contradiction to their faith.

It is reassuring to hear, once again, that President Trump understands Federal law to protect not only worship, but full participation in civic life. It is high time to protect not only churches and religious corporations, but all religious Americans as individuals.

To further bolster this understanding, the Order reminds us, “The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government.”

Bravo, Mr. President. I only wish that you had retained the bright and clear language of the earlier draft: “Religious freedom is not confined to religious organizations or limited to religious exercise that takes place in houses of worship or the home. It is guaranteed to persons of all faiths and extends to all activities of life.”

While asserting a vigorous policy is nice, it actually accomplishes nothing unless policies and guidelines are put in place. So, Section 4 of the Order directs the Attorney General to “issue guidance interpreting religious liberty protections in Federal law.”

You would think that the Attorney General could have written some of those guidelines into the Order. In fact, the earlier draft contained some sound guidelines from the First Amendment Defense Act. However, these were stripped out of Thursday’s Order. This is ominous. We can only hope that some will be reinserted by the Mr. Sessions.

Section 2 deals with the Johnson Amendment. This law passed in 1954 threatens to take away a church’s tax-exempt status if they endorse or campaign for particular candidates. It was an unjust law from the start.

While I certainly agree that churches should stick to the word of God and not descend into personal politics, the federal government should not be in charge of judging what can and cannot be preached from the pulpit. Churches are accountable to God, and are more than capable of keeping false teaching and inappropriate politicking out of their own pulpits.

Besides, the Johnson Amendment gave rise to three more problems.

First, no one can deny the biased application of this law. How many times have you seen presidential candidates endorsed by churches, or even allowed to preach in them, while other candidates are derided for using the word “God.”

Second, the Johnson Amendment has had a chilling effect on all preaching. Lest they be accused of endorsing any particular candidate, most churches are too paranoid to address any issue that may be called “political.” This unintended consequence has been a major contributor to the degradation of public life.

Third the IRS, under Lois Lerner, used the Johnson Amendment as political cover to hamper the work of 501(c)3 organizations which advocated policy at odds with the Obama administration. This was a horrifying abuse of executive power.

For all these reasons, I wish the alarmists were right who say that Trump’s Executive Order is against the Johnson Amendment. But, alas, it is not. All it does is to restate that the Johnson Amendment allows churches and religious organizations to speak “about moral or political issues from a religious perspective.”

It does correct the most egregious abuses of the IRS by directing that the Secretary of the Treasury “ensure that… it does not take any adverse action against any individual, house of worship, or other religious organization” which are not breaking the law. This is an order that should not have to be given. The fact that it is necessary at all is a real black-eye to the IRS.

Section 3 of the Order addresses the “HHS Mandate.” This is the law written by HHS Secretary, Kathleen Sebelius, which forces religious institutions to provide coverage for birth control and abortion-inducing drugs in their insurance policies. This outrageous mandate has been the center of contention since 2012.

Whenever you have the government forcing the Little Sisters of the Poor to buy birth control, you know that something is seriously wrong.  Recently, the Supreme Court directed the HHS to amend these regulations.

One might have thought that this Executive Order would have spelled out those amendments. Instead, it merely tells the HHS to “consider issuing amended regulations.” Once again, the Executive Order kicks the can down the road.

I am grateful for the fairly strong language in the first Section of the Executive Order. It provides us with a good opportunity to talk about the First Amendment and its function in American civil life. But that is about all that this Order actually gives us.

The remainder of it is severely disappointing. After three months of behind-the-scenes wrangling, this is the best that they could do. It is not as though they forgot to consider including more specific protections. Rather, after considering them for three months, they could not generate the political will to include them.

The more I read and think about the Executive Order on Free Speech and Religious Freedom, the more troubled I am. The First Amendment deserves a more robust defense than this. Now, all we can do is wait to see if the Attorney General, the Secretary of the Treasury, and the Secretary of HHS will come up with guidelines which reinsert what was stripped out of the earlier version.

Better yet, contact your congressional delegation and encourage them to pass the First Amendment Defense Act and to repeal the “HHS Mandate.” These actions would be better and more permanent than the mere stroke of a pen.