ACLU: On second thought, we're not bothering to sue over religious-liberty EO

It didn’t take long for the ACLU to pledge that it would fight the Trump administration over the executive order on religious liberty. They began threatening a lawsuit on Tuesday, as news broke that the long-awaited EO would get signed this week, and made it official almost immediately after the signing ceremony took place. Calling it a “dual dose of pandering to a base and denying reproductive care” at 12:47 pm ET, the ACLU promised to “see Trump in court, again.”


A few hours later, though, the ACLU reconsidered the use of its resources (via the Daily Caller):

Intimidated? Seen the light? Er … no, not really. After actually reading the EO, the ACLU determined that there’s no there there:

They’re hardly alone in being unimpressed with the final version of the EO. Heritage fellow and author Dr. Ryan Anderson accused the White House of caving yet again to protests from liberals rather than delivering substantively on his promise to defend religious liberty:

Today’s executive order is woefully inadequate. Trump campaigned promising Americans that he would protect their religious liberty rights and correct the violations that took place during the previous administration.

Trump’s election was about correcting problems of the last administration, including religious liberty violations and the hostility to people of faith in the United States. This order does not do that. It is a mere shadow of the original draft leaked in February. …

Media reports from Tuesday said that today’s executive order was going to provide meaningful protections: “one influential conservative who saw the text said it hasn’t been dialed back much—if at all—since the February leak. ‘The language is very, very strong,’ the source said.”

In reality, what Trump issued today is rather weak. All it includes is general language about the importance of religious liberty, saying the executive branch “will honor and enforce” existing laws and instructing the Department of Justice to “issue guidance” on existing law; directives to the Department of the Treasury to be lenient in the enforcement of the Johnson Amendment; and directives to the secretaries of the Treasury, Labor, and Health and Human Services (HHS) to “consider issuing amended regulations” to “address conscience-based objections” to the HHS contraception mandate.


As I also wrote yesterday, Anderson doesn’t believe the Johnson amendment is a “prime priority” on religious liberty. The ACLU apparently doesn’t consider it a liberty issue either way, which is a little puzzling, because the EO poses a threat to the 14th Amendment in its call for the IRS to pick and choose enforcement of that part of the tax code. In order to sue over that, though, the ACLU would have to show standing, which means finding a client who has been damaged by the order. That would take a while, since such enforcement would typically take place at the end of a tax year — and the IRS has been ignoring churches who politick from the pulpit as a protest to the Johnson amendment for some time now.

Perhaps more ominously, the highly respected legal advocacy group Alliance Defending Freedom offered an extensive criticism of the EO. Senior counsel Gregory Baylor wrote that it left “campaign promises … unfulfilled”:

“First, no specific relief is offered to families like the Vander Boons in Michigan, who were threatened with the effective closure of their family-run business for simply expressing a religious point of view on marriage that differed from that of the federal government.

“Second, the outline directs the IRS ‘to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment.’ But Americans cannot rely on the discretion of IRS agents, some of whom have abused that discretion for years to silence pastors and intrude into America’s pulpits. Nor does the outline do anything to prevent a future, hostile administration from wielding its power to penalize any church who dares exercise its constitutionally protected freedoms in a manner that displeases those in authority. A legislative problem like the Johnson Amendment demands a legislative solution like the Free Speech Fairness Act.

“Third, the outline indicates it will ‘provide regulatory relief for religious objectors to Obamacare’s burdensome preventive services mandate, a position supported by the Supreme Court decision in Hobby Lobby.’ The president certainly should fulfill his promise to protect the Little Sisters of the Poor, a host of Christian colleges, and others from having to choose between violating their consciences and paying crippling fines to the IRS.

“A pledge to ‘provide regulatory relief’ is disappointingly vague, especially given the long existence of an obvious means of solving the problem: crafting an exemption that protects all those who sincerely object on religious and moral grounds so that they can continue to serve their communities and the most vulnerable among them. We encourage the administration to pursue that course of action and to do so promptly so that it can resolve the dozens of cases still pending against it.[“]


Baylor’s concerns over the EO’s direction to the IRS mirror those in my post yesterday morning. Religious liberty is not enhanced by arbitrary enforcement — it becomes more endangered by it.

In essence, the fight to strengthen religious liberty should not be founded on executive orders. It should focus on ending encroaching regulation, repealing laws that compel cooperation against reasonable exercises of conscience, and perhaps most of all to strengthen the rule of law rather than use the short cut of rule by whim. Short cuts were how we got here in the first place.

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Jazz Shaw 9:20 AM | June 25, 2024