Trump signs order aimed at allowing churches to engage in more political activity
By By John Wagner and Sarah Pulliam Bailey
May 04, 2017 | 5:16 PM
The May 4 order directs the Internal Revenue Service to relax enforcement of rules barring tax-exempt churches from participating in politics. (May 4, 2017) (Sign up for our free video newsletter here http://bit.ly/2n6VKPR)
President Donald Trump on Thursday said he would direct the Internal Revenue Service to relax enforcement of rules barring tax-exempt churches from participating in politics as part of a much-anticipated executive order on religious liberties.
The order - which Trump formally unveiled in a Rose Garden ceremony with religious leaders - also offers unspecified "regulatory relief" for religious objectors to an Obama administration mandate, already scaled back by the courts, that required contraception services as part of health plans.
"For too long the federal government has used the state as a weapon against people of faith," Trump said, later telling those gathered for the event that "you're now in a position to say what you want to say . . . No one should be censoring sermons or targeting pastors."
But the sweep of the order - unveiled on a National Day of Prayer - was significantly narrower than a February draft, which had alarmed civil libertarians, gay rights and other liberal advocacy groups and prompted threats of lawsuits.
Among other things, that version included a controversial provision that could have allowed federal contractors to discriminate against LGBT employees or single mothers on the basis of faith.
The order released Thursday instead included a blanket statement that "it is the policy of the administration to protect and vigorously promote religious liberty."
Trump said he would direct the Justice Department to develop rules to guide that process.
While Trump's action was applauded by many in the Rose Garden, some religious groups criticized him for what they characterized as a vague directive that didn't live up to his campaign rhetoric.
"We strongly encourage the president to see his campaign promise through to completion and to ensure that all Americans - no matter where they live or what their occupation is - enjoy the freedom to peacefully live and work consistent with their convictions without fear of government punishment," said Gregory S. Baylor, senior counsel for the pro-faith group Alliance Defending Freedom.
Even the less sweeping version prompted threats of lawsuits from opponents, however.
The advocacy group Public Citizen and the American Civil Liberties Union both announced plans to sue over the relaxation of rules on politicking from the pulpit.
"The actions taken today are a broadside to our country's long-standing commitment to the separation of church and state," ACLU executive director Anthony D. Romero said in a statement. "Whether by executive order or through backroom deals, it's clear that the Trump administration and congressional leadership are using religion as a wedge to further divide the country and permit discrimination. "
As a candidate and shortly after taking office, Trump declared he would "totally destroy" what's known as the Johnson Amendment, a six-decade-old ban on churches and other tax-exempt organizations supporting political candidates.
The provision applies to all tax-exempt organizations, including many colleges and foundations. But Christian groups have complained most vociferously about its use.
The provision is written in the tax code and would require an act of Congress to repeal fully.
Trump's order instead directs the Internal Revenue Service to "exercise maximum enforcement discretion of the prohibition." Such a directive would not necessarily extend beyond a Trump presidency.
Ralph Reed, chairman of the Faith & Freedom Coalition and a leading advocate of repealing the prohibition, called Trump's order a good first step.
"President Trump's executive order removes a sword of Damocles that has hung over the faith community for decades by administratively repealing the Johnson Amendment and restoring the right to political speech by pastors, churches and ministries," Reed said in a statement, adding that his group will still like to see congressional action.
Violations of the Johnson Amendment are infrequently pursued by the IRS, but evangelicals claim it has been used selectively against them, preventing Christian leaders from speaking freely in church.
Experts also questioned how much impact the order will have given it will take an act of Congress to fully address the issue.
Rabbi David Saperstein, former ambassador-at-large for international religious freedom, said the directives language doesn't seem to make a significant difference in existing practices.
"People committed to the Johnson Amendment will be troubled he's continuing down a path toward changing existing law," he said. "Those who are advocating for a significant change are going to be disappointed."
The amendment is named for Lyndon B. Johnson, who introduced it in the Senate in 1954, nine years before he became president.
Under current law, churches are free to promote political candidates but must forgo such activity to obtain tax-exempt status.
The repeal of the Johnson Amendment is also being written into the tax legislation being developed in the House of Representatives, according to congressional aides.
But both the provision and the broader legislation face substantial hurdles.
In a letter Wednesday to Republican leaders of Congress, Sen. Ron Wyden, D-Ore., and other Democrats expressed concern that repealing the amendment would allow tax-exempt churches and other nonprofits to be used to skirt campaign finance laws.
"Using charitable causes as shell companies to evade campaign finance transparency and contribution limits would increase the flow of dark money in politics.," the letter said.
Trump's religious liberties order was aimed to please a key part of his base: Exit polls in November showed Trump defeating Democratic nominee Hillary Clinton 80 percent to 16 percent among white evangelical Christians.
Trump chose to unveil the order on a National Day of Prayer, which previous presidents have recognized.
"It's great to be doing it in the Rose Garden," Trump said at the outset of Thursday's ceremony. "How beautiful is that?"
Trump later received a standing ovation from the audience, which included leaders from an array of faiths, when he said, "it was looking like you never get here, but folks, you got here."
Vice President Mike Pence and more than a half-dozen Cabinet secretaries also attended the event, which kicked off with music by Steven Curtis Champman, a Grammy-award winning Christian singer.
"We're a nation of believers," Trump later told the audience. "Faith is deeply embedded into the history of our country."
Conservative Christian churches have become increasingly concerned that the federal government could come after their tax-exempt status if they profess opposition to gay rights and same-sex marriage. But some pastors have endorsed the Johnson amendment, arguing it protects what is supposed to be a spiritual haven from the pernicious intrusion of politics.
In February, 89 percent of evangelical leaders said in a National Association of Evangelicals poll that they do not think pastors should endorse politicians from the pulpit.
Until Trump elevated it during his campaign, the Johnson Amendment was rarely a top priority for advocates of religious liberty. In fact, some faith groups have said they strongly support the amendment that Trump is weakening. Requiring churches to stay out of politics, they say, is key to separating church and state.
The Baptist Joint Committee for Religious Liberty, a leading faith-based group focused on religious freedom, has said it supports the Johnson Amendment, because keeping politics and religion separate is best for religion.
Rabbi Jack Moline, the president of the Interfaith Alliance, criticized the executive order in a statement.
"For decades, the Johnson Amendment has prevented houses of worship from being turned into partisan political tools. A majority of clergy - and Americans - support the status quo and oppose political endorsements from the pulpit."
Nonreligious groups also support the Johnson Amendment, which applies broadly to charities, not just churches. The Secular Coalition for America called the executive order Thursday "an unprecedented attack on the separation of church and state by a sitting President."
Before the release of the order, critics were particularly concerned a provision in the February draft providing leeway to federal contractors to discriminate in the name of religious freedom would be included.
That provision was not included in Thursday's order.
A provision that was included in the order is a response to the issue raised in the prominent Hobby Lobby and Little Sisters of the Poor cases before the Supreme Court - whether employers must comply with the Affordable Care Act's requirement that insurance cover contraception for women.
In the Hobby Lobby case, the court said some employers can opt out of paying for their employees' birth control coverage for religious reasons. Afterward, the Obama administration announced new rules to allow for the insurance company to pay for the contraception instead.
The order calls for "regulatory relief" for those parties but does not spell out what that might entail. The White House official who briefed the media on Wednesday night did not elaborate.