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May 5, 2017

Religious Liberty — Symbolism and Substance

Trump’s executive order is important for its message, but less so for what it actually accomplishes.

On Thursday, Donald Trump signed an executive order touted as a significant step toward restoring religious liberties and protections which had been heavily eroded under Barack Obama. An early draft of the order leaked to the press in February had many conservatives expectant and hopeful of Trump enacting strong and broad protections for religious freedom and expression. Then came the actual order, leaving reactions mixed. As we said yesterday the order is a symbolically important rebuke of the last eight years, but it’s low on substantive change.

The executive order focuses primarily on three areas. One, the Trump administration will “vigorously promote religious liberty.” Two, the IRS will be advised to “exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit.” And three, the order provides “regulator relief for religious objectors to ObamaCare’s burdensome preventative services mandate, a position supported by the Supreme Court’s decision in Hobby Lobby.”

Trump’s order highlights the problem with executive orders in general — namely that they lack both the strength to undo existing law and the permanency of law. That’s not to say they aren’t substantive tools to affect change in and of themselves, or useful for inviting legal challenge or igniting legislative action. It remains to be seen if Trump’s order induces either, though we wouldn’t be surprised if his aim isn’t court challenges in particular. If religious liberty wins at the Supreme Court, it would be more lasting than any order he could sign.

Thus far the Left’s response to the order has been quite tepid, with both CNN and MSNBC describing it simply as “controversial,” their standard term for any socially conservative policy. Meanwhile, the American Civil Liberties Union, well known for challenging policies it views as discriminatory, says the order is nothing more than “an elaborate photo-op with no discernible policy outcome.”

In the end, it’s important to remember one thing: Trump frequently works to get things done through perception. Whether it’s immigration, trade, foreign policy, or various domestic issues, he confidently expresses big picture ideas that are inevitably slim on details but are designed to attract and motivate people. That’s no guarantee of success, but it’s his art of the deal.

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