Trump Religious Liberty Executive Order Leaves Opportunity for A Needed Advance
Stanley Carlson-Thies and Chelsea Langston Bombino, May 11, 2017
President Trump’s May 4, 2017, Executive Order, “Promoting Free Speech and Religious Liberty,” turned out to be both less broad in scope and different in substance than widely anticipated on all sides. Many expected the May 4 EO to more closely resemble a draft Order that leaked in February. The draft Order set out a long list of protections for religious persons and organizations, many in the context of religious convictions supporting traditional views of marriage and sexuality. In sharp contrast, such protections were not taken up in the May Executive Order. However, its silence on these issues, surprisingly, leaves room for the new approach our divided society needs.
Expecting the May Executive Order to be like the February draft, some groups advancing LGBT rights had promised that they would go to court to prevent enforcement of what they said would be a “license to discriminate” for religious persons and organizations. In light of the actual text, however, the ACLU released a statement saying that there was nothing that required a challenge. The Executive Order has been met with mixed reactions from religious leaders, with some praising the action, others offering lukewarm support and viewing the Order as benign, and still others critiquing the Order as not going nearly far enough.
So what are we to make of President Trump’s Executive Order, when many people are claiming it either went too far or not far enough? While much commentary has focused specifically on what the Order does and does not say, larger questions about the responsibilities of the different branches of government and about our society’s divided convictions about human sexuality have been neglected. We consider here both the Order itself and these larger matters.
The Executive Order stresses that the Trump administration’s policy will be to “vigorously enforce Federal law’s robust protections for religious freedom” for both “Americans and their organizations.” It then requires federal action in three areas.
The first directive is for all federal agencies to “respect and protect the freedom of persons and organizations to engage in religious and political speech,” to the extent permitted (already) by law. The president’s aim here is to loosen enforcement of the “Johnson Amendment,” which prohibits 501(c)(3) nonprofit organizations, including churches, from supporting or opposing candidates. According to a Washington Post report, church-state scholar Douglas Laycock interprets this section of the EO not as implying that “pastors should be allowed to endorse from the pulpit… [Rather, it] suggests churches should not be found guilty of implied endorsements where secular organizations would not be.” IRS enforcement is already minimal, as Charles Haynes, Director of the Religious Freedom Center at the Newseum, put it to NPR: “The IRS hasn’t been enforcing the endorsement-from-the-pulpit regulation for a long time, and they’re not likely to. So just instructing the IRS to do what it’s doing now doesn’t change anything.” Clergy and religious organizations differ on how they think the lack of clarity in the Johnson Amendment should be handled.
The second directive of the Executive Order tells specific federal agencies to “consider” resolving “conscience-based objections to the preventive-care mandate.” In other words, this section of the Order asks agencies to address the Little Sisters of the Poor problem: the long-running litigation by various faith-based organizations to stop the requirement that they be forced to have health insurance plans that cover contraceptives they find objectionable on religious grounds. This directive is encouraging, yet the US Supreme Court has already told the federal government to come up with a solution acceptable to religious organizations, and it lies with Congress to provide a permanent solution.
The third directive is a brief command that, to ensure that federal agencies comply with applicable law, the Attorney General shall “issue guidance interpreting religious liberty protections in Federal law.” This directive instructs no new law, no new administration interpretations, just clarifying guidance.
The Executive Order provides hope that President Trump can be a leader in advancing religious freedom as a foundational American value while also protecting other important rights. And yet Executive Orders are not the best method when long-term guidance, carefully considered by the elected representatives of the people, is needed. There are few thingsthat need more clarification at the federal level than the intersection between religious freedom and LGBT rights. Yet it remains to be seen how the federal government, both the Trump administration and Congress, will ensure that the rights of everyone and every organization will be respected with regard to religious freedom.
The leaked February draft of the Executive Order was aimed at protecting religious freedom in response to the US Supreme Court’s decision requiring marriage equality across the nation. Yet, because that Order only set out protections for religious freedom in the federal context of few solid civil rights protections for LGBT people, it was widely regarded as one-sided. The May 4 Executive Order does not add to the already broad public sense that religious freedom is a right leveraged against LGBT people, but neither does it propose a way to protect rights all around.
It is the legislature—the Congress—and not the President, that is responsible for crafting laws that protect the rights of all. They must set out the extent and the limits of religious freedom and determine any new requirements of nondiscrimination on the bases of sexual orientation and gender identity. Instead, Congress has approached religious freedom in two one-sided ways. Democrats have proposed the Equality Act, which would add LGBT protections to classic civil rights laws, with little protection for religious persons and organizations. The Republicans’ First Amendment Defense Act (FADA) would, like the leaked February Executive Order, create new religious freedom protections, but does not address how to balance LGBT protections.
Congress is deeply polarized on this issue and doesn’t seem inclined to work for both-and solutions. Yet there are many religious freedom advocates who also aim to work toward protecting everyone’s interests. As Charles Haynes told NPR, “Protecting conscience while simultaneously making sure LGBT people aren’t discriminated against…should be our goal on all sides, right? – ’cause these are two important American values — nondiscrimination and religious liberty. I mean, I’m for both. I think many Americans are for both.”
Will President Trump, as a next step after this Executive Order, give leadership to Congress and the nation in this contentious and critical area that many perceive as necessarily a clashing of rights rather than as an opportunity and calling to support and balance different interests that need not be mutually exclusive? President Trump has expressed support both for religious freedom and for the LGBT community. His administration has taken actions regarded as supportive of LGBT protections and other actions seen as supportive of protecting religious freedom. Will he sponsor a process that brings together religious and LGBT advocates to work out how the interests of all can be protected? This approach, more than a stronger and longer religious freedom Executive Order, is what we most need.