President Trump promised a new world for the religious when he signed an executive order in May purporting to make it easier for churches to engage in politics without losing their tax-exempt status.

“You’re now in a position to say what you want to say,” he told religious leaders at a Rose Garden signing ceremony. “No one should be censoring sermons or targeting pastors.”

But many religious activists and experts on the relevant law said the order didn’t do much of anything, that it amounted to a symbolic gesture with little chance of shaking the status quo.

Now, the Trump administration’s own lawyers have essentially taken the same position.

On Tuesday, Department of Justice attorneys defending the so-called “religious liberty” order argued in court that it doesn’t change any existing laws or alter any policies to benefit churches or clergy. Rather, they said, it merely tells the government not to take any punitive action against religious groups that it wouldn’t take against other tax-exempt organizations.

“None of the remarks made by the president suggest that the executive order grants an exemption to religious organizations while denying the same benefit to secular organizations,” DOJ lawyers wrote in a brief filed in U.S. District Court in Madison, Wisconsin.

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The order targets a provision in the tax code known as the Johnson Amendment that bars churches and other tax-exempt groups from speaking on behalf of political candidates. Trump vowed during the campaign to destroy the Johnson Amendment, and his executive order was billed as a fulfillment of that pledge.

But the prohibition is almost never enforced by the IRS and is widely disregarded by clergy. As a result, critics have called Trump’s order meaningless.

“It’s irrelevant, it’s offensive, it’s ignored by churches anyway,” conservative Christian scholar Robert P. George of Princeton University told The Washington Post after the signing ceremony in May. “He got enthusiasm in return for getting nothing.”

In another indication of the order’s apparent weakness, the American Civil Liberties Union, normally an aggressive litigant in church-and-state cases, decided not to challenge it in court. The order was “an elaborate photo-op with no discernible policy outcome,” the ACLU’s executive director said in explaining the decision.

But a secular group called the Freedom From Religion Foundation did sue, arguing that the order favored religion in violation of the First Amendment’s Establishment Clause. The complaint alleged that the IRS would “selectively and preferentially” stop enforcing the Johnson Amendment against religious groups “while applying a more vigorous enforcement standard to secular nonprofits.”

In Tuesday’s brief, government lawyers asked the judge to throw out the lawsuit, saying the plaintiffs “misunderstand the Order’s purpose and effect.”

“The Order does not exempt religious organizations from the restrictions on political campaign activity applicable to all tax-exempt organizations,” the filing read. “Rather, the order directs the Government not to take adverse action against religious organizations that it would not take against other organizations in the enforcement of these restrictions.”


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