WEBVTT - Laycock on Trump's Religious Rights Order (Audio)

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<v Speaker 1>President Donald Trump took executive action yesterday to give churches

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<v Speaker 1>and religious groups greater leeway to engage in politics without

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<v Speaker 1>risking their tax exempt status. The order directs the Internal

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<v Speaker 1>Revenue Service to use its discretion in the enforcement of

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<v Speaker 1>the law known as the Johnson Amendment, a decades old

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<v Speaker 1>provision of the tax code that bars many tax exempt

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<v Speaker 1>organizations from directly endorsing candidates for office. But what does

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<v Speaker 1>this order really do well? The Americans Civil Liberties Union

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<v Speaker 1>tweeted that we thought we'd have to sue Trump today,

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<v Speaker 1>but it turned out the order signing was an elaborate

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<v Speaker 1>photo op with no discernible policy outcome. Our guest is

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<v Speaker 1>Douglas Lacock. He's a professor at the University of Virginia

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<v Speaker 1>School of Law. Doug, what does this order do As

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<v Speaker 1>far as destroying the Johnson Amendment, which Trump has vowed

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<v Speaker 1>to do, the c U Rights doesn't do anything. Um.

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<v Speaker 1>The issue in the Johnson Amendment is Canada taxa exempt organization.

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<v Speaker 1>It's not just churches. Can a tax exempt organization endorse

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<v Speaker 1>the political candidate? And and the reality is if churches

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<v Speaker 1>endorsed candidates with some frequency in the I R S.

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<v Speaker 1>Job bones about it. It It tells him not to, but

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<v Speaker 1>it never actually tries to enforce the law. I don't

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<v Speaker 1>think it has any confidence that it's constitutional. The sensor sermons, UH,

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<v Speaker 1>if they spend money, they buy a full page ad,

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<v Speaker 1>they can lose their tax exemption. There's one case like that.

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<v Speaker 1>UM nothing in its executive border says that UM churches

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<v Speaker 1>can endorse candidates. It says they should be treated the

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<v Speaker 1>same way as other secular nonprofits, which they uh pretty

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<v Speaker 1>much already are. So there's nothing there's nothing new here.

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<v Speaker 1>So well, so what would it take though to really

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<v Speaker 1>change the Johnson Amendment? And if you're gonna do it,

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<v Speaker 1>would it you know, would it just be focused on

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<v Speaker 1>churches or where you felt isn't? Well, if you're gonna

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<v Speaker 1>do it, you ought to focus on all not for

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<v Speaker 1>profits because if you do it only for churches thing

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<v Speaker 1>you get an argument that it's a preference from religion

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<v Speaker 1>and it's an establishment close violation. UM. You know, there's

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<v Speaker 1>a bill in Congress to repeal it, which would be

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<v Speaker 1>a mistake. UM. In general, political contributions are not tax

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<v Speaker 1>deductible political contributions that churches are. So if churches could

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<v Speaker 1>spend money on politics. That would be a huge, huge loophole. UM.

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<v Speaker 1>But there's also a bill to say, look, apply to

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<v Speaker 1>Johnson Amendment only when the church spends money on politics,

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<v Speaker 1>and don't apply it to things like a sermon that

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<v Speaker 1>are in the ordinary course of the church's activity and

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<v Speaker 1>don't cost any money. Um. That's pretty much what the

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<v Speaker 1>i R S and force and policy has been. And

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<v Speaker 1>and I don't think that bill is gonna pass, but

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<v Speaker 1>but it could and and and that would codify the

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<v Speaker 1>the existing practice. But it takes congressional action to change

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<v Speaker 1>the Johnson Amendment. UM. The most the present could do

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<v Speaker 1>by executive border is UM tell the I R s

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<v Speaker 1>to use enforcement discretion not to enforce it. And they've

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<v Speaker 1>been doing that for years, Doug. What does the order do,

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<v Speaker 1>if anything, As far as the contraception mandate, which is

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<v Speaker 1>the provision of the Obamacare Act that requires health plans

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<v Speaker 1>and insurers to provide contraception to women, Well, it does.

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<v Speaker 1>It does very little there either. It it UM instructs

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<v Speaker 1>the secretaries of the three relevant Cabinet agencies to consider

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<v Speaker 1>issuing amended regulations UH to address conscience based objections. UM.

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<v Speaker 1>So hobby Hobby already exempts employers who don't want to

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<v Speaker 1>pay for contraception. UM. The only thing left is the

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<v Speaker 1>employers who don't want their second insurance companies to pay

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<v Speaker 1>for it either. That's what the Little Sisters of the

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<v Speaker 1>Poor case was about. UM. And maybe the three cabinet

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<v Speaker 1>agencies will do something about that. UM. Maybe the administration

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<v Speaker 1>will settle those cases on terms favorable to the religious employers.

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<v Speaker 1>But this executive order doesn't do anything. And and of

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<v Speaker 1>course the President doesn't need an executive order to ask

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<v Speaker 1>his cabinet officers to consider something. And that's all this

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<v Speaker 1>says they should consider it. So and about the thirty

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<v Speaker 1>seconds we have left in it, you know, some people

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<v Speaker 1>say that, uh, some conservative religious groups were unhappy with

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<v Speaker 1>this order because it didn't do that much. What is

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<v Speaker 1>it they'd like to see President Trump do. Well. They

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<v Speaker 1>would like to see a sweeping declaration to protect conscience

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<v Speaker 1>on all the hot button social issues, particularly discrimination against

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<v Speaker 1>case and transgender for federal contractors and federal employees. UM.

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<v Speaker 1>The wedding vendor case is the Forest and the Bakers.

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<v Speaker 1>Those are all state law cases. The President can't do

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<v Speaker 1>anything about those. But the draft back in February. Uh,

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<v Speaker 1>seemed to say, and nobody working for the federal government

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<v Speaker 1>has to serve anybody has a religious objection to and

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<v Speaker 1>and there's not a hint of that in this executive quarter.

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<v Speaker 1>Thanks for being on Bloomberg Law. That's Douglas Laycockey is

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<v Speaker 1>a professor at the University of Virginia School of Law.

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<v Speaker 1>Coming up on Bloomberg Law. It's perhaps their most popular song,

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<v Speaker 1>and the Eagles are protecting it and their trademark, suing

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<v Speaker 1>a hotel for calling itself the Hotel California