But many religious activists and experts on the relevant law said the order didn’t do much of anything, that it amounted to a symbolic gesture with little chance of shaking the status quo.
Now, the Trump administration’s own lawyers have essentially taken the same position.
On Tuesday, Department of Justice attorneys defending the order argued in court that it doesn’t change any existing laws or alter any policies to benefit churches or clergy. Rather, they said, it merely tells the government not to take any punitive action against religious groups that it wouldn’t take against other tax-exempt organizations.
“None of the remarks made by the President suggest that the Executive Order grants an exemption to religious organizations while denying the same benefit to secular organizations,” DOJ lawyers wrote in a brief filed in U.S. District Court in Madison, Wis.
The order targets a provision in the tax code known as the Johnson Amendment that bars churches and other tax-exempt groups from speaking on behalf of political candidates. Trump vowed on the campaign trail to destroy the Johnson Amendment, and his executive order was billed as a fulfillment of that pledge.
But the prohibition is seldom enforced by the IRS and is widely disregarded by clergy. As a result, critics have called Trump’s order meaningless.
“It’s irrelevant, it’s offensive, it’s ignored by churches anyway,” conservative Christian scholar Robert P. George of Princeton University told The Washington Post after the signing ceremony in May. “He got enthusiasm in return for getting nothing.”
In another indication of the order’s apparent weakness, the American Civil Liberties Union, normally an aggressive litigant in church-and-state cases, decided not to challenge it in court. The order was “an elaborate photo-op with no discernible policy outcome,” the ACLU’s executive director said in a statement explaining the decision.
But a secular group called the Freedom From Religion Foundation did sue, arguing that the order favored religion in violation of the First Amendment’s Establishment Clause. The complaint alleged that the IRS would “selectively and preferentially” stop enforcing the Johnson Amendment against religious groups “while applying a more vigorous enforcement standard to secular nonprofits.”
In Tuesday’s brief, government lawyers asked the judge to throw out the lawsuit, saying the plaintiffs “misunderstand the Order’s purpose and effect.”
“The Order does not exempt religious organizations from the restrictions on political campaign activity applicable to all tax-exempt organizations,” the filing read. “Rather, the order directs the Government not to take adverse action against religious organizations that it would not take against other organizations in the enforcement of these restrictions.”
That, of course, is already the way the law is supposed to operate.
In essence, there’s nothing to litigate, government lawyers said. The Freedom From Religion Foundation didn’t have grounds to sue in the first place, they told the court, because nothing had changed at the IRS. “Such a policy may never be implemented, and the plaintiffs may never suffer the kind of unfavorable treatment described in their complaint,” the filing read.
Dan Barker, head of the group challenging the order, said he would be open to dropping the litigation if the order is really as thin as the government’s brief suggested.
“It looks like they’re saying that Trump’s executive order really doesn’t do anything,” Barker told Politico this week. “We’ve got nine attorneys, and they all have their own opinions — I just heard them in the hallways saying it looks like the executive order doesn’t do anything, which is actually great if that’s true.”
Religious groups were irked by the government’s tepid defense, as the Hill reported Wednesday. They said the brief showed just how limited the order was.
“We’re now at the end of August, and DOJ’s actions in court are still not following through on the president’s promises from the Rose Garden in May, or on the campaign trail last year,” Montse Alvarado, executive director of the religious liberty law firm the Becket Fund, told the newspaper.
A similar issue came up in the court battle over Trump’s sanctuary cities executive order. Signed in the first week of his presidency, the order threatened to cut off funding from local governments that don’t cooperate with immigration authorities.
In April, the government argued that a lawsuit contesting the order should be tossed because the administration had not yet defined what a sanctuary city was. Rather than addressing constitutional challenges, government lawyers said the order was “merely an exercise of the President’s ‘bully pulpit’ to highlight a changed approach to immigration enforcement,” as U.S. District Judge William H. Orrick wrote at the time.
“This interpretation renders the Order toothless,” wrote Orrick, of California, noting that existing law allowed the government to decide which cities got federal grants. He added that government lawyers had acknowledged that the order didn’t give them any extra control over billions of dollars in other funds.
“It is heartening that the Government’s lawyers recognize that the Order cannot do more constitutionally than enforce existing law,” the judge quipped in a ruling that temporarily froze the order.
The case is still in progress, and Orrick has ruled that the plaintiffs have a good chance of winning. The Justice Department has since offered an official definition of sanctuary cities.
Whether Trump will revise or update his religious liberty order to make it more actionable remains to be seen. But he seems well aware of how important it is to his base.
“The promotion of free speech and religious liberty, that’s a big one,” he said from the Rose Garden in May. “That’s as big as it gets, right?”
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