The ACLU will not file a legal challenge to President Donald Trump’s executive order on religious liberty despite an aggressive statement promising litigation early Thursday afternoon.
The civil rights group issued a declaration promising a lawsuit shortly after the order was signed in a Rose Garden ceremony at the White House. They accused the administration of empowering their clerical allies on the religious right.
“The actions taken today are a broadside to our country’s long-standing commitment to the separation of church and state,” the organization said. “Whether by executive order or through backroom deals, it’s clear that the Trump administration and Congressional leadership are using religion as a wedge to further divide the country and permit discrimination.”
But by late Thursday, the group concluded the order was little more than a “faux sop to religious conservatives.”
The president’s order has two significant provisions. The first relaxes enforcement of the Johnson Amendment, a tax provision which prohibits churches and religious organizations from engaging in partisan political activities like endorsing candidates. The second requires federal agencies to consider amending regulations “to address conscience-based objections” to the Affordable Care Act’s contraception mandate, such as those brought by the Little Sisters of the Poor, a Catholic order of nuns.
Scholars and commentators of varying ideological commitments agree that the order is limited in reach and ambition.
Writing at Take Care, Georgetown University Law Center professor Marty Lederman called the order “modest” and predicted it will have little practical effect on policy.
“It is entirely hortatory, and does even less than the White House’s modest roll-out last night suggested,” he wrote.
In a separate post, he explained that federal agencies like the IRS rarely take action against churches or religious groups which violate the Johnson Amendment as a matter of course, making Trump’s order something of an empty gesture. Still, Lederman suggests a policy statement granting religious organizations preferential treatment as compared to other 501(c)(3) organizations with respect to enforcement of the Johnson Amendment could violate the Constitution’s establishment clause.
Prominent social conservatives generally shared Lederman’s perspective regarding the scope of the order. The Heritage Foundation’s Ryan Anderson characterized the order as “woefully inadequate,” while Princeton professor Robert George said it amounted to a victory for Jared Kushner and Ivanka Trump, senior administration officials with socially liberal views. The New York Times’ Ross Douthat pithily argued that the White House has not properly ordered its religious freedom priorities.
White House spokeswoman Sarah Huckabee Sanders dismissed the ACLU’s threat as partisan posturing and accused the group of consistently failing to vindicate the civil liberties of religious adherents.
“They love to come out against Republicans,” she said of the organization. “They love to talk about debating tolerance except when it comes to people of faith. They should be celebrating that people are being protected. That’s what this executive order is about.”
She also vowed that government lawyers were prepared to defend the order in court. It seems, for the moment, that they have no takers.
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