President Trump’s Executive Order Promoting Free Speech and Religious Liberty
Tax-Exempt Organizations Law Update 05/04/17 David Brunori
President Trump signed a much-anticipated executive order on May 4, 2017, intended to promote free speech and religious liberty. The order was anxiously awaited by religious groups and nonprofit organizations because many people believed it would reflect a significant change in government policy.
In reality, however, the order does not indicate a dramatic change of policy. The President began the order by re-emphasizing the Federal government's commitment to religious liberty. He then orders that all Federal agencies will "to the greatest extent practical" respect and protect the "freedom of persons and organizations to engage in religious and political speech." He then directs the Secretary of the Treasury to refrain from taking adverse action against individuals or organizations for speaking about moral or political issues where such speech has not been treated under the law as intervening on behalf of, or in opposition to, a candidate for public office. In other words, individuals and religious organizations still cannot participate in political campaigns.
The President also ordered the Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services to "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code." We believe this presidential suggestion is aimed at contraceptive and family planning services. While unknown at this time, the agencies involved could promulgate new regulations allowing employers to avoid paying for some insurance services based on religious grounds. But, this is unlikely to change the law in any significant way. The U.S. Supreme Court in Burwell v. Hobby Lobby Stores, Inc. had previously determined that the preventive care mandate violated the Religious Freedom Restoration Act of 1993.
The President's executive order is unlikely to have a significant effect on nonprofit organization's legal rights and responsibilities. If you have any questions, please contact the Quarles & Brady LLP Tax-Exempt Organizations team.