President Donald Trump recently signed an executive order that he said would allow churches and other religious non-profits to become more politically active. Many believed that President Trump would sign an order that would include broad religious liberty provisions, allowing businesses and religious conservatives to discriminate against people, particularly those in the LGBT community. However, the actual implications of the document appeared limited.
Professor Miriam Galston, who previously addressed President Trump's promise to free religious organizations from constraints on political activity, provided an analysis on the text of the order. "The text reveals that the executive order fails to do what Trump and others forecast," she said.
After Section One's general promise "to vigorously enforce Federal law's robust protections for religious freedom," Section Two of the order directs the Treasury Secretary and other officials not to take action against any individual or religious entity for engaging in speech that "has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign." Surprisingly, then, all the order says is that neither the Internal Revenue Service nor any other agency or official should begin to treat as unlawful speech or other acts currently treated as lawful. "In short, as was noted by an administration spokesperson, the order does not change existing law," Professor Galston said.
On the subject of family planning and contraception coverage mandated by the Affordable Care Act (ACA), Professor Galston notes that the order only requires the Secretaries of the Treasury, Labor, and Health and Human Services to "consider" amending existing regulations "consistent with applicable law, to address conscience-based objections" to the ACA's provisions. If after consideration, these agencies decide to propose new regulations, they will have to conform to existing law – the ACA as interpreted by the Supreme Court. Section Three's "Conscience Protections with Respect to Preventive-Care Mandate" may in fact cause agencies to propose regulations more sensitive to the concerns of those who have religious objections to contraception, if these can be justified within the existing legal framework. However, like all proposed regulations, these will be subject to the normal processes set forth in the Administrative Procedure Act and, if the past is any guide, will also be subject to court challenges.
Professor Galston concluded that "the optics were great, but any real change will be limited and take effect a long way down the road."