President Trump on Thursday plans to relax rules barring tax-exempt churches from participating in politics as part of a much-anticipated executive order on religious liberties, according to two senior White House officials.
The order will also address an Obama administration mandate that religious employers, such as Little Sisters of the Poor, provide contraception services as part of health plans, the officials said.
But it will not include a controversial provision contained in a draft leaked in February that would have potentially allowed federal contractors to discriminate against LGBT employees or single mothers on the basis of faith.
The full sweep of the measure — to be unveiled on a day when Christian conservatives visit the White House — appeared in flux Wednesday as it was vetted by White House Counsel Don McGahn and others to minimize chances of successful lawsuits challenging the order.
In some cases, it also remained unclear whether Trump would be able to accomplish all he has promised religious leaders through the use of an executive order as opposed to legislation.
As a candidate and shortly after taking office, Trump declared he would “totally destroy” what’s known as the Johnson amendment, a six-decade-old ban on churches and other tax-exempt organizations supporting political candidates.
The provision is written in the tax code and would require an act of Congress to fully repeal. It’s possible that Trump could direct the Internal Revenue Service not to actively pursue cases of political activism by members of the clergy, although any such directive could be subject to legal challenge and not necessarily extend beyond a Trump presidency.
The IRS says violations of the provision are rarely pursued anyway, but evangelicals claim it has been used selectively against them, preventing Christian leaders from speaking freely in church.
The White House officials, who spoke on the condition of anonymity to discuss the order before it was released, declined to discuss how Trump would pursue his aim related to the Johnson amendment, which is named for Lyndon B. Johnson, who introduced it in the Senate in 1954, nine years before he became president.
The provision — whose inclusion in the order was first reported by the New York Times — applies to all tax-exempt organizations, including many colleges and foundations.
Under current law, churches are free to promote political candidates but must forgo such activity to obtain tax-exempt status.
The repeal of the Johnson amendment is also being written into tax legislation being developed in the House of Representatives, according to congressional aides.
But both the provision and the broader legislation face substantial hurdles.
While Trump’s religious liberties order is likely to please a key part of base — exit polls in November showed Trump defeating Democratic nominee Hillary Clinton 80 percent to 16 percent among white evangelical Christians — it has caused trepidation elsewhere.
Of particular concern was the draft provision providing additional freedom to federal contractors to discriminate in the name of religious freedom.
“If this executive order is anything like the one that was leaked in February, it would create an unprecedented license to discriminate with federal funds,” Sarah Warbelow, the legal director of the Human Rights Campaign, said in a phone call with reporters. “Freedom of religion does not give people the right to impose their beliefs on others, to harm others, or to discriminate.”
But White House officials said that provision would not be included in Thursday’s order.
A provision that will be included in Thursday’s order is a response to the issue raised in the prominent Hobby Lobby and Little Sisters of the Poor cases before the Supreme Court — whether employers must comply with the Affordable Care Act’s requirement that insurance cover contraception for women.
In the Hobby Lobby case, the court said employers can opt out of paying for their employees’ birth control coverage, triggering the insurance company to pay for the contraception instead.
Asked by reporters on Wednesday whether the president would sign a religious freedom executive order the next day, White House press secretary Sean Spicer said he would not “get ahead” of the president on the executive order.
Just the rumor of a signing on Thursday elicited statements of celebration from Christian groups including the Liberty Council, and statements of opposition from liberal groups, including religious ones. More than 1,300 clergy signed a letter opposing the proposed order, which they published as an ad in Politico.
Sarah Pulliam Bailey contributed to this report.