Let’s dispense first with the vague and sweeping promise to “protect and vigorously promote religious liberty.” That’s a nice sentiment, but it’s proven only by actions, and if the order itself is considered one of those actions, then it’s self-refuting. The order doesn’t do anything “vigorously,” and it doesn’t “protect” anything at all.
.. The Johnson Amendment is constitutionally problematic (to put it mildly). Lyndon Johnson rammed it through Congress for the noble purpose of stopping nonprofits from supporting his primary opponent and preserving his own political hide, and it’s been on the books ever since
.. First Amendment lawyers are desperate to find a good test case to challenge it, but the IRS’s general lack of enforcement means that the right case is elusive. So the amendment remains.
.. The answer to the Johnson Amendment, however, is to either repeal the statute or overturn it in court. This order does neither. In fact, a lawyer will commit malpractice if he tells a pastor or director of a nonprofit that this order allows a church or nonprofit to use its resources to support or oppose a candidate.
.. The administration can right now begin the rulemaking process to change the contraception mandate. Congress can right now begin the lawmaking process to repeal the Johnson Amendment. Congress can right now work to pass statutes that protect free speech and rights of conscience. That’s the real work of government. Anything else is fluff, a symbol at best.
.. To guarantee protections for religious liberty, you write those protections into law, you don’t wish-cast them through executive orders.