President Donald J. Trump displaying Executive Order Promoting Free Speech and Religious Liberty (Official White House Photo by D. Myles Cullen)
Last Thursday, May 4, two significant government actions dominated the news. One was the narrow passage in the House of Representatives of the AHCA, legislation designed to roll back a number of provisions of the Affordable Care Act. The other was the signing by the President of an Executive Order on Religious Liberty, surrounded by religious people of various faiths.
As a religious person, I do care about religious liberty and think the First Amendment protections in our constitution important to uphold, and indeed strengthen, because of the long and global history of religious persecution. We do not do it perfectly but we have a system that allows an incredible diversity of religious expression in our country and works hard not to privilege any one over the others. This is a relatively singular occurrence in human history that is a mark of American greatness.
One thing that is important to note about the executive order, available to be read on the White House website is that it is a directive to federal agencies that does not repeal laws but only addresses the approach taken to enforce them. Only a new law can repeal a law. Only court decisions can overturn laws. What is significant, from what I can read in the executive order, is it suggests a disposition on the part of government to defend religious liberty rather than undermine it. Section One on policy says:
“It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans’ first freedom. 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.”
These are broad statements that amount to saying that the executive branch will uphold the Constitution, which is in fact what the President says he will do in taking the oath of office. But to go on record in this regard is heartening.
Much has been made of Section Two. Contrary to popular belief, it does not repeal the Johnson Amendment banning the endorsement or opposition to political candidates by churches or other 501 (c)(3) organizations. David French (a lawyer I had the chance to work with on a religious liberty issue), writes in The National Review:
“In fact, a lawyer will commit malpractice if he tells a pastor or director of a nonprofit that this order allows a church or nonprofit to use its resources to support or oppose a candidate. Even if the Trump administration chooses not to enforce the law, a later administration can tear up Trump’s order and begin vigorous enforcement based on actions undertaken during the Trump administration.”
What may be the case is that this will presumably make some feel bolder in talking about political issues or even endorsing candidates because they need not fear enforcement. French’s warning is, “for now.” I certainly wouldn’t use this as a warrant to endorse candidates not supported by the current administration!
Section Three concerns conscience exemptions to the preventive care (read contraceptive) mandate. It says that several government agencies “shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.” In fact, this has already been mandated by the Supreme Court during the Obama administration.
French makes an important point in his article–executive orders are no substitute for law-making. At best they are only a start. John Inazu, in his book Confident Pluralism, articulates three areas where substantive law-making is needed to protect religious and speech freedoms in the public square (summary is quoted from my review of his book):
The Voluntary Groups Requirement:
“Government officials should not interfere with the membership, leadership, or internal practices of a voluntary group absent a clearly articulated and precisely defined compelling interest” (p. 48).
The Public Forum Requirement:
“Government should honor its commitment to ensure public forums for the voicing of dissent and discontent. Expressive restrictions in these forums should only be justified by compelling government interests. Private public forums that effectively supplant these government-sponsored forums should in some cases be held to similar standards” (p. 64-65).
The Public Funding Requirement:
“When the government offers generally available resources (financial and otherwise) to facilitate a diversity of viewpoints and ideas, it should not limit those resources based on its own orthodoxy” (p. 79).
French notes in his article the attacks on religious groups in universities that infringe on the first and third of these requirements and the attacks on dissenting views that would infringe on the second.
I would argue that the protections Inazu talks about include but are broader than just religious liberty. They protect the freedom of conscience and associative and speech freedoms of all citizens, not just religious citizens. I would argue that these are the liberties for which we need robust protections, not simply in executive orders but in law.
There is one other religious liberty I long for. I have written often about the way the American church has offered itself as a voluntary captive to the political process. Actually, one of the concerns I have about the relaxation of enforcement around political speech in pulpits is that in so doing, I think the government is helping the church dig its own grave. Perhaps it is anecdotal, but I am watching not only younger, but also older evangelicals angered by this political captivity, leaving evangelical churches, even churches not overtly engaged in this kind of behavior.
I long for the day when churches cast off the chains of partisan politics and repent for how they have alienated people from the gospel of Christ that unites people across all the divides of our contemporary politics. I long for a church that speaks prophetically to both left and right (currently it seems only late night television is doing that). This is the kind of speech for which you actually need religious liberty protection.
I have to admit to being troubled by the setting in which this order took place. Religious leaders are gathered around in the Rose Garden celebrating the protection of their own liberties while down the street the party of the President is passing legislation to make the protection of one’s health increasingly difficult for the most vulnerable in our society to obtain (“the Unaffordable Health Care Act”?). I’m torn. I’ve had to advocate against real attempts to undermine religious liberty. Yet I was telling a friend recently that religious liberty concerns me less than the attack on the liberties of the poor, children, the elderly, the most vulnerable in our society. Perhaps the only way to reconcile this is the idea that all liberties are important and that the attack upon the liberty of any of us is in fact an attack on the liberty of all of us. Might we agree upon that?