On Thursday, while the House of Representatives was rushing through their Health Care Overhaul, President Trump signed his promised executive order “promoting free speech and religious liberty”.
The President, as quoted in the Washington Post, explained his position: “For too long the federal government has used the power of the state as a weapon against people of faith, bullying and even punishing Americans for following their religious beliefs,” Trump said, later telling those gathered for the event that “you’re now in a position to say what you want to say . . . No one should be censoring sermons or targeting pastors.”
I notice two things at the outset about these comments. First, he’s absolutely right about his last statement: nobody should be censoring sermons on behalf of the federal government. Of course, that has never happened and never would and the logistics of how one would do that completely fail me. But credit where credit is due.
Second, let’s ponder the claim in the first statement — the federal government has used weapons against people of faith, has bullied them, and even punished them. This assertion is wrong on its face, with the exception of Native Americans and Mormons earlier in our history. (There was significant anti-Catholic bias but that only indirectly involved the federal government). The assertion of intent by a secular government that hates religion may play well to an audience who believes they are regularly discriminated against but it cannot be supported by facts, especially when the leaders of government continue to be overwhelmingly Christian.
Still, the Executive Order was a major part of President Trump’s campaign so it’s worth looking at what it says. My twitter feed has been full of reactions. My short take is that if the Alliance Defending Freedom doesn’t like it, it didn’t do much. Reviewing its elements make the order’s symbolic role pretty clear.
Section 1 says that “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom.” It goes on to celebrate the role of religion in the public square and asserts that the administration will protect that constitutional right. Of course, the president swears to uphold the constitution in his oath of office, so this is just a reminder and not new ground.
It’s worth watching this language, however. Increasingly, courts have been using the administration’s claims (including statements during the campaign) as embodying intent. So when the White House claims it will protect the freedom of religious groups to exercise their religious views without interference from the government, that doesn’t just apply to conservative religious groups. It applies to Muslims and the non-religious as well.
Section 2 makes a stab at Trump’s complaints about the Johnson Amendment. In short, this section says that the Treasury Department will not engage in adverse actions in response to moral or political speech by churches or pastors. It’s well documented that this has almost never happened, that pastors of various political persuasions have engaged in Pulpit Freedom Sunday (openly defying the Johnson Amendment IRS rules) without penalty, and that many churches have spoken on moral and political issues for years. For all of Candidate Trump’s pronouncements about killing the Johnson Amendment, the language of the EO was clearly done by a crack team of lawyers:
In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.
Section 3 speaks to religious conscience protections for those opposed to the contraceptive mandate in the Affordable Care Act (which is not mentioned by name). The concern for some groups has been that the regulations implementing the contraceptive mandate included methods they believed were abortifacients. This was the basis for the Hobby Lobby decision. The EO instructs government entities to “consider implementing amended regulations” to “address conscience-based objections“. On the one hand, the courts have already been involved in encouraging the various parties to find reasonable accommodation. On the other hand, if the AHCA were to become law, it’s unclear what the status of the contraceptive mandate is going forward anyway.
Section 4 instructs the Attorney General to “issue guidance interpreting federal liberty protections in Federal law“. This section is the one that rang alarm bells for my progressive friends — what does this allow AG Jeff Sessions to do? I understand that concern, but this order doesn’t give Sessions any more freedom to do this that he already has. In fact, issuing guidance about Federal law is pretty much the first thing on the Attorney General’s job description!
The final two sections are pretty boilerplate. If one of the first four sections was unconstitutional, the others could stand. If you thought that language in here allowed you to break a Federal law, it doesn’t.
So, on balance, the Executive Order doesn’t change much of anything. With the exception that it affirms a robust Federal commitment to religious freedom that I believe will be used by non-majority religious perspectives to claim their freedom to worship (or not) as they please.
Those that were somehow hoping that the Federal Government would carve out a protected role for Conservative Christians to live out their faith commitments over and against other groups will be naturally disappointed. All the Federal Government has the capacity to do, regardless of who is in the White House, is to affirm the vital role of a robust public square.
The Executive Order closes section 1 by stating this explicitly: “Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.”