By: James Gottry
After months of speculation, a leaked draft order, a temporary deferral, and further speculation, President Trump has signed an executive order to “vigorously enforce Federal law’s robust protections for religious freedom.” But while it’s a good first step to securing religious freedom, it leaves many issues unsolved.
For months, the outrage in response to even the possibility of such an order has been palpable. The ACLU threatened to sue even before the order was issued, as it and other groups preemptively blasted the order as providing “an excuse to discriminate.” Of course, considering the text of early drafts, the ACLU’s gripe was not with the executive order so much as with the foundational freedoms guaranteed by the First Amendment. And the “discrimination” the ACLU vowed to oppose was shorthand for the ACLU’s belief that freedoms of conscience, religion, and expression are delicacies reserved for those who conform to the prevailing orthodoxy.
Despite such early hyperventilation, the actual order shouldn’t be controversial; if anything, it should be underwhelming, particularly to people who care about the many threats to freedom facing people of faith throughout the nation. The draft leaked in February directed federal agencies to respect federal statutes and Supreme Court decisions that protect the free exercise of religion. But it also identified many specific ongoing threats to religious freedom and provided explicit protection in those cases. Faith-based adoption agencies, federal employees who express pro-marriage or pro-life views, and recipients of federal grants or contracts are just of few of the many groups for whom specific protection was offered.
The order that President Trump signs today steps back from that robust protection and instead provides three exhortations. First, it declares that the administration’s policy is to “vigorously enforce Federal law’s robust protections for religious freedom.” Second, it instructs the IRS to do all it can to alleviate the burden of the Johnson Amendment, which has been used for years to silence religious leaders and intrude into America’s pulpits. Third, it directs federal officials to “consider issuing amended regulations” that protect individuals and organizations with religious objections to Obamacare’s abortion-pill mandate, which, if executed effectively, means that Christian colleges and groups such as the Little Sisters of the Poor should no longer be forced to choose between abandoning their beliefs or shutting their doors.
The first prong of the order is no surprise. During his campaign, President Trump stated that the first priority of his administration would be to preserve and protect religious liberty. After all, under the Obama administration, far too many government officials and agencies had been willfully neglecting the protections guaranteed by the Constitution and Bill of Rights. While many remain optimistic that this reiteration of the administration’s commitment will lead to change, the executive order stops well short of the strong language contained in the original draft.
As to the Johnson Amendment, the order continues to leave the matter of its enforcement to the discretion of IRS agents – the very individuals who have penalized churches for exercising their constitutionally protected freedoms in ways that displease those in authority. If there was ever an example of the fox guarding the henhouse, this is it.
As to Obamacare, there is reason to hope that the various employers and entities subject to the abortion-pill mandate will in fact benefit from the executive order. The mandate, issued in 2012, directed Christian universities, organizations, and employers to provide abortion-inducing drugs through their healthcare plans, or face crippling IRS fines. Religious business owners, including Hobby Lobby and Conestoga Wood Specialties, challenged the mandate and prevailed at the Supreme Court in 2014. Non-profit religious organizations, however, were presented with a so-called “accommodation” that was anything but accommodating. Recognizing the failure, the Supreme Court sent the matter back to the lower courts in May 2016. But since then, many religious organizations have dangled in uncertainty, waiting to see whether they would be forced to choose between abandoning their beliefs or shutting their doors. The executive order hopefully will prompt federal officials to put this matter to rest. But we’ll need to wait and see what those officials do next.
Notably, however, and as I’ve written elsewhere, no president can unwind years of a federal bureaucracy’s overreach in a day. No president can—nor should be able to—control the actions of state and local governments. And no president can alone set freedom’s future on a proper course by guaranteeing religious and expressive freedom on university campuses.
For that reason, Alliance Defending Freedom will continue – with your support – to advocate for and defend freedom of conscience, to push for the elimination of restrictive speech codes on university campuses, and to champion religious freedom both here and abroad.
We’ll continue to stand with creative professionals such as florist Barronelle Stutzman, artist Breanna Koski and calligrapher Joanna Duka, Carl and Angel Larsen of Telescope Media Group, cake artist Jack Phillips, and graphic designer Lorie Smith, people who shouldn’t be forced to choose between their conscience and their livelihood.
We’ll continue to defend students such as Norvilia Etienne, who was denied the right to start a Students for Life chapter at Queens College. We will represent student groups like Young Americans for Freedom, who scheduled a visit to California State University – Los Angeles by Ben Shapiro, only to have the event shut down by a mob of protesters, aided by the university’s discriminatory speech policies and practices.
We’ll continue to stand up for the freedom of individuals, entities, and churches, such as Trinity Lutheran Church, whose preschool was excluded from a state grant program that makes playgrounds safer with the aid of old tire scraps, solely because it was a religious nonprofit. And through our global partner, ADF International, we’ll continue our efforts to stop genocide in the Middle East, and to advocate against female foeticide in India, where in recent years, 19 million girls have died through abortion or murder just after birth.
The executive order on religious freedom is a small but important step toward reclaiming religious freedom, yet the journey is far from over. At Alliance Defending Freedom, we are committed to continuing this work, not just to protect religious freedom in the present, but to secure freedom’s future for generations to come.