WASHINGTON — Religious freedom advocates credited President Donald Trump with taking a “first step” toward protecting religious freedom with an executive order he signed on Thursday, but stressed that there is still more work to be done.
“I thought the executive order was a great step forward,” Cardinal Donald Wuerl of Washington told CNA. “[Trump] himself says this is the first step. But it’s the beginning, and we’ve waited a long time for it.”
President Donald Trump signed a religious freedom executive order on Thursday in the White House Rose Garden, on the National Day of Prayer, with religious leaders — including Cardinal Wuerl — standing around him.
The executive order instructs government agencies to consider issuing new regulations to address conscience-based objections to federal HHS mandate, which requires employers to offer health insurance plans that fund contraception, sterilizations and some drugs that can cause early abortions.
It also calls for a loosening of IRS enforcement of the Johnson Amendment, which prohibits religious ministers from making endorsements of political candidates from the pulpit to retain the tax-exempt status of churches.
Congressional action is required to formally repeal the law, but the executive order is an important move in ensuring that religious entities can weigh in on political issues without losing their tax-exempt status.
Attending the signing of the executive order were the Little Sisters of the Poor, plaintiffs in one of the HHS mandates case against the federal government. Trump honored two of the sisters who were present in the Rose Garden, calling them “incredible nuns who care for the sick, the elderly, and the forgotten.”
“I want you to know that your long ordeal will soon be over,” he told the sisters of their years-long HHS mandate case, and saying that his order would protect them and other religious organizations from the mandate.
“We are grateful for the president’s order and look forward to the agencies giving us an exemption so that we can continue caring for the elderly poor and dying as if they were Christ himself without the fear of government punishment,” said Mother Loraine, Mother Provincial of the Little Sisters of the Poor.
The HHS Mandate
For years, the HHS mandate has been the subject of heated legal debates. It originated in the Affordable Care Act’s rule that health plans include “preventive services,” which was interpreted by President Obama’s Department of Health and Human Services (HHS) to include mandatory cost-free coverage for contraceptives, sterilizations, and abortion-causing drugs in health plans.
After a wave of criticism, the government offered an “accommodation” to religious non-profits who conscientiously objected to complying with the mandate — they would have to notify the government of their objection, and the government would directly order their insurer to provide the coverage in question.
However, dozens of religious charities, schools, and dioceses still sued, saying that even with the “accommodation,” they would still be required to cooperate with — and possibly even to pay for, indirectly — the objectionable coverage. EWTN is among the organizations that have filed lawsuits. CNA and the National Catholic Register are both part of the EWTN family.
The Becket Fund for Religious Liberty, which has defended a number of the groups suing the government over the HHS mandate, explained that the order will empower federal agencies to ensure protections for religious organizations in mandate cases.
“The agencies have everything they need to review these rules and make sure groups like the Little Sisters are protected,” Lori Windham, senior counsel with the Becket Fund, told reporters.
“We will engage with the Administration to ensure that adequate relief is provided to those with deeply held religious beliefs about some of the drugs, devices, and surgical procedures that HHS has sought to require people of faith to facilitate over the last several years,” Cardinal Daniel DiNardo of Houston-Galveston, president of the U.S. Conference of Catholic Bishops, stated on Thursday.
“We welcome a decision to provide a broad religious exemption to the HHS mandate, but will have to review the details of any regulatory proposals,” he added.
The new order also declared that “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom” and instructed the Attorney General to “issue guidance interpreting religious liberty protections in Federal law.”
Calls to Go Further
Still, many religious freedom advocates felt that the order did not go far enough. For example, it does not offer protections for health care workers and facilities that decline to perform abortions, or adoption agencies that place children only in homes with both a mother and a father.
“Today’s executive order is woefully inadequate,” Ryan Anderson of the Heritage Foundation stated in The Daily Signal, saying it “does not address the major threats to religious liberty in the United States today.”
It is narrower than the previous draft of a religious freedom executive order that had earlier been leaked to The Nation, but was ultimately scrapped in February. That draft had outlined religious freedom exemptions for not only religious organizations, but also closely-held for-profit businesses in many different areas, like education, health care, and employment.
Anxiety over the long-term status of religious freedom in the wake of political and cultural pushback against believers who object to abortion, contraception and same-sex "marriage" has increased pressure on the White House to move more quickly on a range of issues, and advocates for free exercise rights are clearly divided on a timeline for change.
John Garvey, the president of The Catholic University of America, which has also filed a legal challenge to the mandate, said he was content with the May 4 order.
"I don’t take the position that this is a bad thing because it doesn’t do more,” Garvey told the Register.
But Garvey, an expert in constitutional law, did have some advice for the Trump administration: "amend" the HHS mandate's narrow religious exemption that sparked the litigation, and replace it with a broad exemption for religious nonprofits and closely-held companies like Hobby Lobby.
Cardinal DiNardo noted that “in areas as diverse as adoption, education, healthcare, and other social services, widely held moral and religious beliefs, especially regarding the protection of human life as well as preserving marriage and family, have been maligned in recent years as bigotry or hostility – and penalized accordingly.”
“We will continue to advocate for permanent relief from Congress on issues of critical importance to people of faith,” he added.
Brian Burch, president of CatholicVote.org, told CNA that the order was “an important first step” toward protecting religious freedom, but more must be done.
“The substance of the order is certainly a win for groups like EWTN, Notre Dame, the Little Sisters of the Poor, but it is not everything that we hoped for,” he told CNA. “And therefore I describe it as a work in progress, in terms of the fight for religious liberty. We didn’t get into this mess in one fell swoop, and we’re not going to get out of it in one clean solution.”
He stressed the need for “protections for faith-based groups on the issue of marriage, on gender, the right of the Catholic Church to carry out its social services when they receive federal grants.”
Burch also pushed for legislative action, like the First Amendment Defense Act and the Conscience Protection Act.
The administration also needs to be staffed with the right people in federal agencies who will be friendly to religious freedom, Professor Robert Destro of Catholic University’s Columbus School of Law told CNA.
“Personnel is policy,” he said, and Trump still needs to make hundreds of hires in these regulatory agencies that interpret existing law, including the agencies that will be dealing with HHS mandate protections for religious organizations.
Trump Meets Cardinals
Trump signed the executive order on the National Day of Prayer, and after he met with Cardinal Wuerl and Cardinal DiNardo.
“We had an opportunity to thank him first of all, for this executive order on religious liberty which is so important,” Cardinal Wuerl said of the meeting.
He also hoped the conversation was a starting point for further dialogue on many other topics. “One of the things that we need, I think, just to continue to talk about, the whole range of human value issues,” Cardinal Wuerl said. “He is certainly supportive of the life issues, supportive of religious liberty. And so we have to continue now to talk about other areas where we might find a place to work together.”
The White House also announced Thursday that Trump would be traveling to Saudi Arabia, Israel, and the Vatican. Cardinal Wuerl said that the president “was also very, very, I thought, focused on this trip he’s going to take that will include a visit to the Vatican. So it was a very good meeting.”