Religious liberty order disappoints some conservatives

Some conservatives are frustrated by President Trump’s new religious liberty order, saying it is dramatically scaled back from what they were expecting and doesn’t enact the protections he promised during the campaign.

At a Rose Garden ceremony Thursday, Trump declared that the “threat against the faith community is over.”

“It was looking like you’d never get here folks, but you got here,” Trump told the dozens of faith leaders the White House invited to the ceremony, which took place on the National Day of Prayer.

Ahead of the signing, religious conservatives hoped the order would resolve a number of issues they say conflict with their faiths, including LGBT anti-discrimination protections and ObamaCare regulations on contraception in employer-provided insurance.

But after reviewing the text of the much-anticipated order, prominent conservatives described it as useless at best and harmful at worst. 

Heritage Foundation senior research fellow Ryan Anderson called the order “woefully inadequate” in an op-ed for The Hill.

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The Christian nonprofit group Alliance Defending Freedom released a statement describing the order as “disappointingly vague” and said it leaves Trump’s campaign promises “unfulfilled.”

And writing in the National Review, David French, who briefly mulled an independent general election bid for conservatives disenchanted with Trump, called the order “constitutionally dubious, dangerously misleading, and ultimately harmful to the very cause that it purports to protect.”

“He should tear it up, not start over, and do the actual real statutory and regulatory work that truly protects religious liberty,” French said.

Not all conservatives agree.

Many of those present for the signing described the order as a marker set by an administration that is committed to ensuring the federal government does not encroach on religious views cherished by many Christians.

Family Research Council President Tony Perkins said the order “makes clear that the administration will pursue policies that protect and vigorously promote religious liberty.” 

Perkins said the order “starts the process of reversing the devastating trend set by the last administration to punish charities, pastors, family-owned businesses and honest, hard-working people simply for living according to their faith.”

Faith and Freedom Coalition chairman Ralph Reed called it “the first bite at the apple, not the last.”

Others went further, with Priests for Life national director Frank Pavone arguing that the order explicitly eliminates restrictions on pastors engaging in politics and frees religious organizations from abiding by an ObamaCare mandate to provide contraception in their health plans.

“We have to celebrate what has happened and understand it’s not finished yet and there will be more coming,” Ronnie Floyd, the former president of the Southern Baptist Convention, told The Hill. “This will impact people living out their lives wherever they may be, whether it’s a lay person in the business world, a football coach praying with his team on the sidelines or a pastor in church preaching gospel and addressing social concerns. We’ll see the totality of it eventually.”

Still, many conservatives were puzzled that the administration did not seek to accomplish more in the executive action.

A draft order that leaked in early February was twice the length of the new order and was described by liberals at the time as “staggering” and “sweeping.” Experts predicted it would be challenged vigorously in the courts.

By contrast, the ACLU, which initially announced it would sue the administration over the order, changed course on Thursday after the full text was released, calling it nothing more than an “an elaborate photo-op with no discernible policy outcome.”

Now, conservatives are criticizing the order point-by-point, beginning with the order’s declaration that the executive branch will “vigorously enforce federal law’s robust protections for religious freedom.”

“The first component simply reiterates what already exists — the federal government should be honoring and enforcing our religious liberty laws anyway,” said Williams, the Heritage policy analyst.

A second component purports to address the Johnson Amendment, a provision in the federal tax code that bars nonprofit religious institutions from endorsing political candidates and parties.

The order essentially directs the Treasury Department to not enforce the relevant element of the tax code, but some conservatives have questioned the wisdom of giving such broad discretion to IRS agents they believe have targeted them in the past. 

Others say the Johnson Amendment requires a legislative or judicial fix. Instructing an agency to ignore it is no different from President Obama telling agencies not to enforce certain immigration laws, conservatives say.

Worse, the order could encourage churches to participate in the 2018 and 2020 election cycles, only to see a future Democratic president put the Johnson Amendment back in place.

“The answer to the Johnson Amendment … is to either repeal the statute or overturn it in court,” French wrote. “This order does neither … a later administration can tear up Trump’s order and begin vigorous enforcement based on actions undertaken during the Trump administration … Thinking they were protected, churches would find themselves in the worst of predicaments, with their rights and possibly even existences dependent on the capricious mercies of the federal courts.”

Reed, the leader of the Faith and Freedom Coalition, acknowledged the new policy does not represent “full statutory repeal” of the Johnson Amendment but called Thursday’s order “a giant step in the right direction.”

Finally, Trump’s order instructs government agencies to “consider issuing amended regulation” to address “conscience-based objections” to ObamaCare’s contraception mandate.

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But conservatives say that the Supreme Court has already begun that process by ruling in favor of Hobby Lobby in a lawsuit against the Department of Health and Human Services. Trump’s executive order keeps the contraception mandate on the books, while legal complaints filed by scores of other institutions remain tied up in the courts.

“A pledge to ‘provide regulatory relief’ is disappointingly vague, especially given the long existence of an obvious means of solving the problem: crafting an exemption that protects all those who sincerely object on religious and moral grounds so that they can continue to serve their communities and the most vulnerable among them,” Alliance Defending Freedom Senior Counsel Gregory S. Baylor said.

White House deputy press secretary Sarah Sanders defended the order at a briefing with reporters on Friday.

“[Trump] is committed to religious liberty and protecting it and whatever that requires,” she said. “ I think this is the first step in the process and we’re not taking anything off the table when it comes to protecting the rights of all citizens of this country.”

Penny Nance, the president of Concerned Women for America, who was also present at the signing, told The Hill that social conservatives are apt to give Trump the benefit of the doubt for now.

She argued that Trump has gone out of his way to include social conservatives in the process of shaping the administration’s policies. And anti-abortion advocates like Nance say Trump has earned leeway by establishing himself as the most consequential president on that issue in a generation.

“He has met and exceeded expectations and followed through on every campaign promise he made to pro-life community,” Nance said. “I think it’s yet to be determined how effective the religious liberty order is, but if it doesn’t work out, you can bet we’ll be right back there asking the administration to go further.”