This morning’s presidential signing of an executive order “promoting free speech and religious liberty” isn’t the broad license to discriminate against LGBT people that many activists feared. Instead, it’s a vague, largely symbolic gesture that seems intended to appease the far-right religious conservatives who carried Trump to victory in November.
“I think it’s a whole lot of nothing,” said Anthony Kreis, an attorney and visiting assistant professor at Chicago-Kent College of Law. “At its worst, it’s a signal to churches.”
It’s important to remember than an executive order doesn’t have the full force of law (or the power to overturn existing statutes), and even if it did, all this order really does is affirm existing precedent around employer-provided reproductive healthcare—and direct the IRS to continue to ignore the Johnson Amendment.
This "religious liberty" executive order ranks just below "presidential turkey pardon" in terms of national impact and importance.
— Anthony M. Kreis (@AnthonyMKreis) May 4, 2017
A “Ratification of Existing Practice”
The order — the precise text of which was not released until nearly two hours after the president signed it — appears to take aim at the Johnson Amendment, which prohibits direct electioneering by tax-exempt nonprofits, including churches. The order itself doesn’t explicitly mention the Johnson Amendment, but it does direct “all executive departments and agencies” to “respect and protect the freedom of persons and organizations to engage in religious and political speech.” It goes on to enumerate what “adverse actions” the Department of Treasury may not take to penalize religious groups or individuals for speaking “about moral or political issues from a religious perspective” or for “intervention in a political campaign on behalf of (or in opposition to) a candidate for public office.” All of the prohibited “adverse actions” deal with a religious entity’s tax status.
But on that front, the executive order is really just a “ratification of existing practice,” Kreis explained. The IRS has rarely prosecuted any religious entity for engaging in political speech. Churches regularly invite candidates to speak to a congregation and ministers preach about hot-button political issues from the pulpit—even encouraging congregants to vote for or against a given ballot initiative—without hearing from the federal government.
“For years, the IRS has taken a very loose approach toward enforcing the Johnson Amendment,” said Kreis. “It’s been particularly lax in terms of allowing religious nonprofits to engage in non-cost political activities. […] The concern, I think, has been more in terms of spending money. We don’t want folks to donate money to nonprofits, then have those monies in turn be used for electioneering purposes. That’s really what we don’t want.”
Trump’s latest executive order could send a signal to churches and religious nonprofits that they’re free to begin engaging in more direct electioneering—like raising money for candidates or specific causes without endangering their tax-exempt status—but the impact of that signal remains to be seen, Kreis cautioned. And a full revocation of the Johnson Amendment would require an act of Congress—like the passage of H.R. 172, introduced into the House in January by North Carolina Republican Rep. Walter B. Jones. (The bill hasn’t even gotten a preliminary reading yet.)
We thought we'd have to sue Trump today. But it turned out the order signing was an elaborate photo-op with no discernible policy outcome.
— ACLU National (@ACLU) May 4, 2017
Hobby Lobby Still Doesn’t Have to Pay for Your Birth Control (Or Pap Smears or Mammograms…)
The order’s section addressing the Affordable Care Act’s so-called preventive care mandate is “another example of a lot of fluff and no substance,” Kreis said. The language is so vague that it offers little more than a green-light for the Departments of Labor, Treasury, and Health and Human Services to continue granting religious exemptions to employers that claim a faith-based objection to offering workers reproductive healthcare. (Editorial note: reproductive healthcare—specifically for Americans with a uterus—is always what the GOP means when they talk about the dangers of “preventive care.”)
Those exemptions—which currently require businesses and organizations to fill out a single form requesting such an exemption—have already been codified and guaranteed by Supreme Court precedent, most directly in the Hobby Lobby and Little Sisters of the Poor challenges to the ACA. While the executive order could encourage regulatory agencies to eventually do away with the notification requirement for such exemptions, it doesn’t change the fact that the groups that have already obtained exemptions still don’t have to provide preventive care for their employees.
“At the end of the day, [Little Sisters of the Poor] didn’t have to provide contraception yesterday, and they don’t have to do today, and they won’t have to tomorrow,” Kreis explained. “And the same thing is true of Hobby Lobby.”
The impact of this particular section of the order is hard to predict, especially in the wake of the House’s passage today of “Trumpcare,” also known as the American Health Care Act, which effectively guts the ACA, including its “preventive care mandate.” According to numerous reports, the version passed by the House today not only repeals protections for Americans with pre-existing conditions, but actually adds to the list of pre-existing conditions that someone can be denied health insurance for, adding sexual assault, domestic violence, a cesarean section, or postpartum depression. It also allows insurers to refuse to cover mammograms and “gynecological services,” according to New York magazine. If that version becomes law, the healthcare provisions in today’s executive order are effectively moot, since reproductive care will no longer be classified as routine healthcare to which all those insured are entitled.
Not a License to Discriminate… Yet.
Given the panicked press calls, protests, and harried mobilization of LGBT organizations and civil rights groups opposing what they feared would be a sweeping “license to discriminate” in the past 48 hours, the fecklessness of the executive order Trump signed today may feel like a victory. But advocates and activists were right to be wary of the anti-LGBT animus underlying any “religious liberty” efforts coming from the White House, said Kreis, who is gay.
Kreis argued that the American right has taken the foundational idea of “religious liberty” and “perverted it for their own political benefit.” It has taken “quite a long time,” he said, but social and political conservatives have redefined religious liberty to mean “anti-contraception and anti-LGBT rights.”
“And so [‘religious liberty’] has now become a dog-whistle for being anti-gay,” he continued. “So it shouldn’t surprise anybody that now, when folks hear the words ‘religious liberty’ being used, that there is an automatic triggering effect of folks thinking oh, that must be anti-LGBT.”
That redefinition, combined with the well-documented anti-LGBT positions of several of Trump’s closest advisers (not least of whom is Vice President Mike Pence, infamous for the anti-LGBT Religious Freedom Restoration Act he championed while governor of Indiana), should indeed prompt LGBT equality advocates to remain on guard, Kreis said.
Just because this particular “religious liberty” executive order didn’t explicitly target the LGBT community doesn’t mean Trump won’t sign another order that does.
“I think it’s better to be on guard, and to be proactive, than to wish that, after something terrible comes down, to wish that you had done more in the lead-up up to it,” Kreis said when asked whether LGBT groups had “overreacted” to news of the coming executive order. “So I I don’t think there’s anything alarmist about what happened yesterday, or in the last 48 hours. I think, quite frankly, it’s understandable and rational.”
The current status of the sweeping anti-LGBT “license to discriminate” executive order that circulated in February remains unknown, leaving advocates understandably wary about how the president whose supporters boasted that he is the most pro-LGBT Republican in history will curtail the already tenuous rights and freedoms gained by LGBT Americans in the past decade.
“When you have a president who fundamentally does not care about public policy, and can be so easily swayed by the people who surround him, and notably, many of whom hold and harbor anti-LGBT views, I don’t think anything is ever off the table,” Kreis said.