//  5/4/17  //  Quick Reactions

I just finished watching the livestream of the President's remarks unveiling his new Executive Order protecting "religious liberty." He seems not to have learned very much from how his remarks about the Muslim travel ban have been treated in court, because his careless exaggerations about the state of exisiting law, and his mischaracteriziation of what's in his new Executive Order, could also come back to bite him. And even if they don't—well, it might be nice if the President actually tried to correctly explain the law one of these days. 

He first described his view of the state of existing law. According to the President, under the Johnson Amendment, "if a pastor, priest, or imam speaks about issues of public or political importance, they are threatened with the loss of their tax exempt status." Uh, no. In reality, as Marty Lederman described earlier today, the Johnson Amendment prevents all 501(c)(3) non-profit organizations (not just religious ones) from only narrow activities: participating or intervening in "any political campaign on behalf of (or in opposition to) any candidate for public office." As Marty notes, leaders of these organizations are not prevented from speaking about politics or about "issues of public importance," as the President just told them they are. If the President wants to fix a problem, it would be nice if he could correctly explain what the alleged problem is. Alas.

"But no longer" will these religious groups be subject to this Amendment, the President next incorrectly told them, because "this financial threat against the faith community is over." The President then claimed his new Executive Order will "prevent the Johnson Amendment from interfering with your First Amendment rights." After all, faith leaders are "the people I want to listen to." He also later said the "federal government will never ever penalize any person for their protected religious beliefs."

Except, not really. As the President himself later said, all the Executive Order does is direct "the IRS not to unfairly target churches and religious organizations" in their enforcement of the Johnson Amendment. It doesn't give religious leaders a "get-out-of-Amendment" free card. Nor could it—as Marty notes, treating churches more favorably than non-religious groups under a facially neutral law could raise problems under the First Amendment. If this Executive Order is challenged in court, the President's saying that his goal is to let religious leaders—but not other non-profit officials—say whatever they want about all issues of political and public importance could come back to bite him.

At the conclusion of the speech, the President turned to represenatives from the Little Sisters of the Poor, who were involved in litigation against the Obama Administration, and asked about their lawyers. "I could use some good lawyers too," he said to them. At least he got that one right.


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