The order is supposed to make it easier for churches and other nonprofits to get involved in political campaigns without risking their tax-exempt status. “No American should be forced to choose,” Trump said, “between the dictates of the American government and the tenets of their faith.”
Since the Constitution guarantees freedom of religion, freedom of speech and the separation of church and state, sorting out how we balance all of those important and sometimes competing rights is the job of the judiciary, not of the executive branch.
But in some ways, the vague and mostly symbolic order doesn’t change much because unambiguously political speech from the pulpit was already commonplace, and sanctions for violating the law against it were already quite rare.
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Essentially, the new order directs the Internal Revenue Service to ease its already almost nonexistent enforcement of the 1954 “Johnson Amendment,” named for President Lyndon Johnson, which prohibits churches and other nonprofits, like the one that once came after LBJ, from endorsing or funding a candidate. That law is still on the books.
Remember when this sort of “don’t bother to enforce the existing law” directive outraged conservatives?
Of course, that was back when Barack Obama was president, and his 2015 order asked immigration officials not to deport about 5 million undocumented immigrants.
In a 4-4 decision, the Supreme Court did not uphold that order, and conservatives ballyhooed that outcome.
It “keeps in place what we have maintained from the very start,” said Texas Attorney General Ken Paxton, which was that “one person, even a president, cannot unilaterally change the law.”
Trump’s new order is also supposed to make it easier for religious nonprofits to opt out of providing contraception coverage as part of insurance for employees at no additional cost, as required under the Affordable Care Act.
But because the Supreme Court already ordered the Obama administration to work something out with religious nonprofits on this front, it’s unclear that this order goes beyond accommodations that were going to happen anyway.
“We are giving churches their voices back,” the president said at the signing ceremony on Thursday.
We’re neither among those who feel churches should have no voice in the public square nor those who see faith-based groups as having been intimidated into silence. Without political speech from religious groups, there would have been no civil rights movement.
The change this order is most likely to cause? It will almost certainly embolden religious nonprofits to endorse candidates less ambiguously, even though that’s against the law.
Though the Constitution guarantees every American’s right to political speech, it does not guarantee taxpayer support of that speech, and we don’t think taxpayers should be required to subsidize political action committees by another name, whether or not they’re faith-based.