Photo credit: Gage Skidmore

What Trump’s Religious Freedom Order Does — And What It Doesn’t Do

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This piece was co-authored by Emmett McGroarty, a senior fellow at the American Principles Project.

Several months ago, to the jubilation of conservatives and the dismay of leftists, the press reported on the draft of a strong executive order on religious liberty that President Trump was rumored to be considering. The draft was quickly withdrawn. Yesterday — the National Day of Prayer — the President signed a different executive order that will supposedly address threats to religious freedom. But the replacement order has been so watered down from its predecessor that people of faith have little reason to celebrate.

The new order targets the Johnson Amendment to the tax code, which supposedly denies tax-exempt status to charitable organizations, including churches, that endorse or oppose political candidates. We say “supposedly” because the Amendment is hardly ever enforced — ask the thousands of pastors who regularly preach political sermons as an open challenge to the IRS, and who have never been penalized for it. Not that it couldn’t happen in the future, but the Johnson Amendment is hardly the most pressing issue facing the faith community in America.

The second part of the order is the possible “regulatory relief” it offers to groups that have religious objections to providing some services, such as abortifacients and other contraception, required by Obamacare. The federal government has been persecuting the Little Sisters of the Poor (you really can’t make this stuff up) for serenely holding to their beliefs on this issue, and so far, the Trump Justice Department hasn’t dropped the action against them. Unfortunately, the order instructs federal officials only to “consider” regulatory changes; it does nothing to guarantee that the Little Sisters and other targeted groups will be granted long-overdue relief. It is puzzling why Cardinal Donald Wuerl and representatives of the Little Sisters appeared at the signing ceremony when the order is so weak on the issues affecting them. Could they have been expecting something stronger?

As for another aspect of religious bigotry that is a real threat in America — government reprisals against faith-based schools, business owners, and charities that seek to operate according to their principles, especially in the area of sexual conduct and marriage — the order breathes not a word.

Some conservative spokesmen and pundits caution that people of faith shouldn’t be disheartened — that this order is only a first step in restoring genuine religious liberty. We hope they’re right. But Trump’s history on these issues doesn’t inspire confidence. Candidate Trump was never the strong proponent of religious liberty that some other Republican contenders were, especially in regard to issues implicating the LGBT agenda.

In a June 2016 meeting with evangelical leaders (the transcript is here), Trump deflected direct questions about the persecution of religious Americans based on their refusal to adopt the new LGBT orthodoxy. When asked about protecting business owners’ right to operate their businesses according to their faith, he slid to a discussion of appointing conservative Supreme Court justices (and, for good measure, he mentioned the Johnson Amendment). Asked directly about LGBT accommodation and indoctrination in the military, he shifted to a call for rebuilding the military in terms of materiel.

In addition, Trump’s confused statements about the North Carolina bathroom-privacy controversy suggested that he either didn’t understood the issues or was hesitant to protect Americans from the LGBT cudgel. The same was true of his acceptance speech at the GOP convention, in which he avoided mentioning most social issues. His only reference to protecting religious freedom was a promise, yet again, to repeal the Johnson Amendment. As to the struggles faced by faith-based schools, business owners, and charities  . . .  no promise of assistance from a Trump administration.

Compare what the President signed today with the prior draft. Among other things, that draft order would have restored “free exercise of religion,” not just the truncated “freedom to worship,” to its proper constitutional place; expanded protections to all organizations operated according to religious principles, not just houses of worship or charities; instructed federal agency officials to ensure nondiscrimination against faith-based child-placement organizations and other services; and ordered relief from the Obamacare abortifacient and contraceptive mandate. Quite a difference.

Maybe we’ll get these meaningful protections in the future. But it’s a shame that Trump decided not to do it now.

Even if today’s order had been strong, the fact remains that what is granted by executive order can be taken away by executive order (as Mr. Obama has seen). So Congress and state legislatures must take action to protect Americans of faith in exercising their First Amendment rights. Nothing in Trump’s order changes that sad reality.

Photo credit: Gage Skidmore


Jane Robbins

Jane Robbins is an attorney and senior fellow with the American Principles Project.