To understand what a nothingburger President Trump’s executive order on religious freedom is, you have to compare it to the draft leaked to journalist Sarah Posner and published in the Nation three months ago.
The draft includes 11 separate orders that would have given religious liberty absolutists — call them spiritual libertarians — just about everything they wanted.
Leading off was an instruction telling the Secretaries of Heath and Human Services, Labor, and Treasury to immediately issue an order exempting individuals and religious organizations (including “closely held” for-profit companies like Hobby Lobby) from the Affordable Care Act’s contraception mandate if they “object to complying for religious or moral reasons.”
By contrast, the Actual Executive Order (AEO) — rolled out on Thursday with huge Trumpian fanfare — merely directs the aforementioned Secretaries t0 “consider issuing amended regulations, consistent with applicable law.”
The draft told the Secretary of HHS not to disfavor agencies receiving federal funds for child welfare services if those agencies have religious scruples (about, say, allowing same-sex couples to adopt a child in their care). The AEO says nothing about this.
The draft ordered religious exemptions from civil rights and disability laws for all federal contractors and grantees. The AEO says nothing about this.
The draft provided a range of protections for individuals and religious organizations to speak and act in defense of beliefs that marriage is between a man and a woman; that sex is reserved for such marriages; that a person’s sex is immutably determined by his or her body parts at birth; and that human life begins at conception. The AEO says nothing about any of this.
And then there’s the so-called Johnson Amendment, which prohibits non-profit organizations (secular as well as religious) from endorsing or opposing candidates for public office. Although Trump has vowed to “destroy” it, there’s no proposal for legislation to do so in either the draft or the AEO.
All the AEO does is prohibit penalizing individuals and religious organizations that speak “about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.”
That’s the presidential equivalent of stamping your feet in the Sahara to keep away the elephants.
Oh yes, and did I mention that where the draft tells the Attorney General to set up a special office to protect religious freedom, the AEO instructs him to provide guidance on interpreting existing protections.
Under the circumstances, it’s no wonder that honest minds on the religious right were disappointed. “In failing to deliver for people of faith, President Trump risks alienating the single constituency most responsible for his election,” Brian S. Brown, president of the National Organization for Marriage, told the New York Times.
Likewise, on the secular left, the ACLU decided not to file suit against the AEO, judging it to be, in the words of executive director Anthony Romero, “an elaborate photo-op with no discernible policy outcome.”
Of course, there were partisans on both sides who proceeded as if the nothingburger were a fully loaded quarter pounder. On the right, they included Ralph Reed, the Becket Fund, and Frank Pavone of Priests for Life, who praised the AEO as “a cause for celebration.”
On the left, Larry T. Decker of the Secular Coalition of America denounced it as “a twisted parody of the religious liberty it claims to protect and an unprecedented attack on the separation of church and state by a sitting President.”
It’s always possible, of course, that the Trump Administration will find ways to provide spiritual libertarians with more than supportive rhetoric, and their spiritual opponents with something real to oppose. But this week’s exercise showed him to be, as they say in Texas, all hat and no cattle.