Why Trump's Executive Order on Religious Liberty Left Many Conservatives Dissatisfied
The president has won support from some high-profile evangelicals, but the move fell well short of expectations for many activists.
Updated May 4 at 1:20 pm EST
President Trump signed an executive order “promoting free speech and religious liberty” on Thursday. The final version of the order addresses two issues. First, it instructs the Internal Revenue Service to “not take any adverse action against any individual, house of worship, or other religious organization” that endorse or oppose candidates from the pulpit, which is currently outlawed by a provision typically referred to as the Johnson Amendment. “We are giving churches their voices back,” Trump said during a ceremony in the Rose Garden. Second, it instructs the Departments of Treasury, Labor, and Health and Human Services to consider amending regulations in the Affordable Care Act that require most employers to cover contraception in employee insurance plans. A number of religious non-profit organizations have been litigating their objections to this requirement.
The order directs the government “to vigorously enforce Federal law’s robust protections for religious freedom.” It’s a first step toward fulfilling Trump’s campaign promises to social conservatives, but the order is much less aggressive than many religious-liberty advocates had hoped. In February, a supposed draft of an executive order on religious issues was leaked to The Nation. That version—reportedly written by a staffer with the D.C. office of the First Liberty Institute, a Texas law firm that focuses on First Amendment issues—contained provisions designed to protect religious organizations and individuals who speak out against same-sex marriage, transgender identity, and pre-marital sex. It was a menu of sorts, a list of possible issues Trump could address from the Oval Office early in his tenure as president. While Trump has earned the support of a number of high-profile religious conservatives, others are deeply unhappy with the president’s first big move on what they see as religious-liberty issues.
The administration announced the new executive order on the National Day of Prayer, a tradition dating back to 1952. For months, liberal and conservative groups have speculated that an executive order on religious liberty was coming soon: These issues are top priorities for religious conservatives, especially the white evangelicals who played a major role in electing Trump to the White House.
Although the order didn’t happen within the first 100 days of the administration, as many religious conservatives called for, the administration rallied tacit support from some of the biggest political names in conservative evangelicalism on the eve of the its release. Trump hosted members of his religious advisory council at a small dinner at the White House on Wednesday night, including Franklin Graham, the pastor and son of the famous evangelist Billy Graham; Jack Graham, a Texas megachurch pastor; Paula White, the Florida church leader who spoke at Trump’s inauguration; and Ronnie Floyd, the former president of the Southern Baptist Convention.
“Mr. President, we're going to be your most loyal friends,” said Robert Jeffress, another Texas megachurch pastor who attended the dinner. “We’re going to be your enthusiastic supporters. And we thank God every day that you're the president of the United States.” Another attendee, the former Liberty University Vice President Johnnie Moore, tweeted that it was “truly an amazing evening. Evangelicals feel right at home in the @WhiteHouse.”
As details about the executive order circulated on Wednesday night, though, many religious conservatives did not feel as pleased with President Trump. On Twitter, the National Review columnist David French called the order “total weaksauce” and a “sop to the gullible.” Russell Moore, the head of the public-policy arm of the Southern Baptist Convention, told me in a message on Thursday morning that “I am hoping that the draft we are seeing this morning is not the entire project, and that more will be forthcoming.” And on Ryan Anderson, a scholar at the Heritage Foundation who works on religious issues, called the new order “woefully inadequate.”
These conservatives argue that the new order doesn’t accomplish much. Take Trump’s action on the Johnson Amendment. While overturning the prohibition on pastors endorsing or opposing candidates from the pulpit would require an act of Congress, the IRS has flexibility in what it chooses to enforce. In the order, the administration instructed the agency to “exercise maximum enforcement discretion of the prohibition.” But that language may be misleading: The IRS already enforces the provision extremely rarely, even when pastors have mailed in tape recordings of potentially law-violating sermons in the hopes of provoking the agency. “Trump seems to have a fixation on the Johnson Amendment, but thatʼs not the concern of people who have been talking about religious liberty for the past several years,” Anderson said.
Or take the “regulatory relief” for religious organizations that object to Obamacare’s contraceptive mandate. Lawyers from Becket, the religious-liberty law firm that led the most high-profile court challenge on behalf of a group of Catholic nuns called the Little Sisters of the Poor, were happy that the administration addressed the case: “We're encouraged by the promise of protection for the Little Sisters coming from the White House,” wrote Mark Rienzi in an emailed statement. And yet, last spring, the Supreme Court already ordered the Obama administration to work with religious non-profits to find a resolution. The executive order “may very well simply be, ‘Yeah, you have to do it, because SCOTUS told you to do it,’ which doesn’t move the ball,” said Anderson.
Tim Schultz, the president of the First Amendment Partnership, which works with legislators at the state and national level on religious-liberty issues, said the conservative reaction to the order would be mixed, especially because it leaves out protections for those who object to same-sex marriage. “Many will be disappointed that this signals a lack of will by the administration to expend political capital in this context,” he wrote in an email on Thursday morning. “Others want to see this addressed with great political care … and they will see an opportunity in this omission.” On the Johnson Amendment guidance, he wrote that “there could well be unintended consequences that are bad for faith communities.” This might include the further politicization of houses of worship or the flow of lobbying dollars into religious organizations.
On Wednesday, Kelly Shackelford, the head of First Liberty, said he thought there would be disappointment among religious-liberty advocates if the order only addressed the Johnson Amendment. But on Thursday, he was optimistic and encouraged. “This sends the message of where the president is,” he said. The “executive order is just the beginning—it’s not the long term—and it can show where his heart is.”
Meanwhile, the executive order turned out to be much milder than liberal advocacy groups and LGBT-rights advocates had feared. Earlier this week, as rumors of an intended executive order spread, groups like the American Civil Liberties Union, the Human Rights Campaign, and the National Center for Transgender Equality circulated statements slamming the administration’s intention to give religious organizations a “license to discriminate” against women and LGBT people—issues that are arguably not addressed at all by the final version of the order.
The evangelicals who dined in the White House Blue Room on Wednesday night didn’t “get anything at all on the EO,” wrote Eric Metaxas, another conservative evangelical leader who attended, in an email—on Wednesday night, he was still “as curious as you are about the details,” he said. But some were already showing their support. Ralph Reed, a political strategist who runs the Faith and Freedom Coalition, said in a statement on Wednesday night that the provision of the executive order on the Johnson Amendment “removes a sword of Damocles that has hung over the faith community for decades” and the provision on religious non-profits “lifts a cloud of fear over people of faith and ensures they will no longer be subjected to litigation, harassment and persecution simply for expressing their religious beliefs.” This order is “just the first bite at the apple,” he wrote, “not the last.”
At least some seemed to be ready, as Jeffress said when he opened spoke to his fellow evangelicals in the White House on Wednesday night, to be Trump’s most loyal friends, no matter what.