BY JOHN SOLOMON – 08/23/17
With national television cameras rolling, President Trump surrounded himself in the Rose Garden this spring with faith leaders as he signed an executive order protecting Catholic employers from Obamacare’s birth control mandate and protecting clergy from IRS punishment if they gave political speeches from the pulpit.
“We will not allow people of faith to be targeted, bullied or silenced anymore,” the beaming president declared May 9 as he delivered on one of his seminal campaign promises.
But three months later, lawyers working for Attorney General Jeff Sessions and the Justice Department have filed legal briefs that religious liberty advocates say undercut or delay Trump’s order.
“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 the campaign trail last year,” said Montse Alvarado, the executive director of the Becket Fund, a religious liberty law firm that has participated in both cases on behalf of religious groups seeking to protect their liberties from government infringement.
At issue are two legal provisions: the Johnson Amendment that prohibits tax-exempt religious organizations from engaging in direct political activities; and the ObamaCare mandate requiring employers to provide health plans that covered the costs of birth control.
Justice officials defend the legal briefs.
Neither the contraception mandate nor the Johnson Amendment is being enforced, they say, but the government is still required to defend them from legal challenges.
“While the president isn’t enforcing either of these provisions, the department still must defend laws that have not been repealed by Congress or found to be unconstitutional,” said an official, speaking only on condition of anonymity because he wasn’t authorized to speak to the press.
White House press secretary Sarah Huckabee Sanders did not immediately return a call seeking comment on Wednesday.
Justice said it could not immediately comment on pending cases but was committed to protecting religious liberties.
“The Department is committed to robust enforcement of the Religious Freedom Restoration Act, but we will not comment on ongoing settlement discussions,” spokesman Ian D. Prior said.
Critics of the Johnson Amendment have long argued that it infringes on the right to free speech from the pulpit, while Catholic hospitals and other organizations have argued the contraceptive mandate violates their religious belief that birth control is immoral.
Trump agreed on both accounts, ordering the IRS not to enforce the Johnson Amendment and vowing to replace the ObamaCare regulation with one that would allow conscientious objections to the birth control mandate. Trump has yet to issue that regulation.
Both the Johnson Amendment and the contraception mandate have come under continued legal challenge.
In a case in federal court in western Wisconsin this week, the Freedom From Religion Foundation has sued the administration, arguing the executive order is unconstitutional because it favors religious groups over non-religious groups by allowing them to endorse or oppose political candidates, but not other tax-exempt organizations.
Justice Department lawyers defending the executive order argue it does not favor religious groups, but merely instructs the government to not take actions against religious groups that it would not take against similar 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,” briefs filed by Justice state.
The language was a disappointment to opponents of the Johnson Amendment, who wanted Justice to declare the law unconstitutional.
Christian leader David Lane, the head of the American Renewal Project who ran a massive get-out-the-vote effort for evangelicals supporting Trump last November, said the court filing shows the limitations of Trump’s executive order.
“In the long run it doesn’t do anything for us because in the end it’s a law passed by Congress, and if the next Obama comes in and wants to enforce it again, we’re right back where we started,” Lane said. “So this is really a failure of Paul Ryan and Mitch McConnell to show leadership in the Congress and remove this improper infringement of religious liberty.”
Lane’s criticism is similar to complaints made about Trump’s executive order when it was delivered in May. Opponents of the law argued the executive order would do little to actually help religious organizations.
The House Appropriations Committee has included language in a spending bill to defund IRS efforts to enforce the Johnson amendment, but it is not clear whether that effort will make it through the House and Senate.
Religious leaders find similar fault in a Justice Department filing last month regarding the contraception mandate.
In the 10th Circuit Court of Appeals in Denver, Justice Department lawyers in late July asked judges to to delay a decision on the constitutionality of the mandate.
The court has already imposed an injunction forbidding the government from enforcing the mandate. Catholic groups have been waiting three years for a decision, as the Justice Department under Obama and now Trump asked for delays in order to promulgate a new rule on the mandate.
The Catholic groups urged the Trump administration to end the delays, accept a permanent injuction and take a position against the contraception mandate that was consistent with Trump’s May order. Instead they were infuriated when Justice filed its brief July 31 asking for another delay to give the administration more time to devise a new rule.
The Becket Fund’s Alvarado said that religious groups were promised an end to both the Johnson Amendment and the ObamaCare mandate months ago, and it is disappointing that affected people like the Little Sisters of the Poor — Catholic nuns who fought the contraception mandate and met with Trump in the Rose Garden — still have not been given the relief that was promised.
“When the president of the country tells you in person that the mandate was wrong and your case is over, you would expect his lawyers to quickly give up the fight. We are all hoping that the federal government will follow through on the President’s promises, admit that the mandate was wrong, and agree to final relief so that people like the Little Sisters can return to focusing solely on their religious mission,” she said.
The Catholic Benefits Association, which represents more than 1,000 Catholic employers who oppose the birth control insurance mandate, wrote a letter last week urging Trump to intervene with the Justice Department to get lawyers to reverse their position in the case.
“Until the DOJ’s appeal ends, or the injunction becomes permanent, or a new regulation is issued, CBA members will continue to be potentially subject to $6 billion in accumulated fines,” Wilson wrote Trump. “We are asking for your personal intervention to effect the final steps in ending this six-year assault on America’s religious freedom.”
In an interview, Wilson said Trump might not be able to get Congress to repeal ObamaCare or the Johnson Amendment, but he has the power to demand federal agencies take more fervent stands against those laws.
“The president doesn’t control Congress so you can’t lay that at his feet. But he does direct and control the Department of Justice and he does control and direct HHS and the other agencies and he can demand they stop opposing these lawsuits and allow the injunction protecting the religious to become permanent,” Wilson said.