Trump on Religious Freedom: ‘A Stance of Non-Aggression’?
NEWS ANALYSIS: Assessing the president’s May 4 executive order.
WASHINGTON — When President Donald Trump introduced his May 4 executive order on religious freedom, members of various groups were on hand at the White House, including prominent Catholic leaders.
Among the guests at the Rose Garden ceremony were the Little Sisters of the Poor, Cardinal Donald Wuerl of Washington and Cardinal Daniel DiNardo of Galveston-Houston, the president of the U.S. Conference of Catholic Bishops.
“This was the first time in years that we have seen from the White House a public recognition of the breadth of religious liberty guaranteed in the Constitution,” Cardinal Wuerl told the Register in the immediate wake of the order’s signing.
Cardinal Wuerl’s assessment explained why Church leaders attended the White House event. After years of battling the Health and Human Services’ contraceptive mandate and other rules that compromised religious freedom, Trump signaled a fresh approach to church-state relations.
Yet Cardinal Wuerl did not suggest that the executive order had resolved all the religious-liberty issues that stirred alarm during the Obama years, such as rules that barred federal contractors from discrimination on the basis of gender identity or weak enforcement of conscience protections for opponents of abortion.
Rather, he pointed to the likelihood of incremental change that would steadily ease the pressure on religious believers and church-affiliated institutions.
“Once you start moving in the right direction, there is more you can correct,” he said.
Other religious leaders and commentators have echoed the Washington archbishop’s positive, nuanced reaction to the release of Trump’s long-awaited executive order, and they say their position reflects a clear-eyed judgment of the weakened status of religious freedom.
But the document has also prompted anger and concern from social conservatives who describe its language as “vague” and “woefully inadequate.”
The executive order directs federal agencies to consider issuing new rules to address conscience-based objections to the 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 relaxation of the IRS’ enforcement of the Johnson Amendment, which prohibits ministers from endorsing political candidates from the pulpit to retain their church’s tax-exempt status.
Some prominent evangelical Protestant pastors, like Franklin Graham, president of the Billy Graham Evangelistic Association and Samaritan’s Purse, welcomed Trump’s stance on the Johnson Amendment. Franklin has said that his organizations were audited by the IRS after he spoke out against same-sex “marriage.”
But the repeal of the Johnson Amendment has never been a top priority for most Christian or Catholic churches. In contrast, faith-based resistance to same-sex “marriage” and to accommodations for gender-identity issues has sparked litigation. Yet the executive order offered no reprieve on such matters — in contrast to provisions that appeared in an early draft of the executive order leaked in February.
“The president’s order is a huge disappointment,” Gerard Bradley, a law professor at the University of Notre Dame, told the Register.
“The first part, which is directed at the so-called Johnson Amendment and the tax-based limits upon political expression by churches, is already rarely enforced.”
“The second, which was probably aimed most of all at the HHS ‘contraception’ mandate, promises nothing concrete. Besides, the Supreme Court has already directed the federal government to negotiate a new approach to that mandate,” said Bradley, in a reference to the high court’s order in Zubik v. Burwell, a consolidated HHS mandate case that includes the Little Sisters’ lawsuit.
“The president has retreated, massively, from the positions his administration staked out in a leaked and widely disseminated draft of the order. Most pointedly, it surely appears that the Trump administration is unwilling to help believers beat back imposition of the ‘LGBT’ agenda upon them.”
HHS Mandate Commitment
Legal scholars say that two key Trump appointees — U.S. Attorney General Jeff Sessions and HHS Secretary Tom Price — both strong advocates of religious freedom, will likely approve rule changes that will benefit plaintiffs in legal challenges to the contraceptive mandate.
But analysts still argued that the executive order lacked teeth.
“The attorney general’s guidance is likely to be pretty religion-friendly, but … this order in itself does nothing,” said Douglas Laycock, a specialist on religious freedom at the University of Virginia Law School. “[There is] nothing here about gay rights, about federal contractors or about federal employees. “
Some commentators have gone further, dismissing the executive order as a shallow political ploy that delivers nothing of value to beleaguered churches under pressure to conform to new sexual orthodoxies.
In a May 4 post on his blog for The American Conservative, author Rod Dreher argued that the “phony” executive order was yet another sign that Christianity was losing ground as a cultural and political force — a central theme of his new best-seller, The Benedict Option: A Strategy for Christians in a Post-Christian Nation.
“It costs Trump exactly nothing in terms of political capital to do what he’s done," said Dreher.
‘Moved in the Right Direction’
Yet, even as Dreher vented his fury at the Trump White House, he also admitted that things could be much worse if the real estate mogul had lost the presidential election.
“[W]e would have seen active attacks on religious liberty by President Hillary Clinton. If Trump is doing no good for us, at least he’s not doing active harm,” said Dreher. “There’s something to be said for that. I’m not kidding.”
While Trump pledged to provide some relief to churches at the Republican National Convention, he has also consistently expressed sympathy for “LGBT” rights. Thus the executive order may provide the first hard evidence of this populist president’s actual position on religious freedom.
“There are a whole bunch of issues related to the HHS mandate on which the president has moved in the right direction, and the Little Sisters’ presence in the Rose Garden does signal a shift in policy that will grant relief,” said Tim Schultz, president of the 1st Amendment Partnership, which promotes religious-liberty issues at the state and federal level.
Meanwhile, the pitched battles between advocates for religious freedom and “LGBT” rights in states like Indiana and North Carolina point to a shift in public sentiment toward greater acceptance of a homosexual agenda and gender-identity ideology. That fact has made these issues a “tricky” challenge for a Republican president, Schultz noted. “It is fair to say the president has not stepped into this issue.”
R.R. “Rusty” Reno, the editor of First Things, suggested that Catholics should not be surprised by the limited scope of the executive order.
“During his campaign, Trump made it clear that he was not interested in challenging the sexual revolution and gay movement,” Reno told the Register. “The executive order reflects that stance. At this point, the Trump administration is offering religious believers a stance of non-aggression rather than laying down firm principles to protect religious freedom.”
“This is an obvious improvement on the approach taken by the Obama administration, but falls short of a clear affirmation of religious freedom,” he added.
Reno, the author of Resurrecting the Idea of a Christian Society, wants religious believers to push hard for a more comprehensive White House policy on religious freedom.
“These efforts need to include ensuring that Trump’s judicial appointments inject a First Amendment rigor into the courts,” he said.
Earlier this week, the White House announced 10 nominees to fill openings on the lower courts, with more needed for an additional 110 empty seats. Carrie Severino, a conservative activist and a veteran of Supreme Court confirmation battles, welcomed Trump's choices.
The news offers further evidence that Trump intends to fulfill his campaign pledge “to appoint strong and principled jurists to the federal bench who will enforce the Constitution’s limits on federal power and protect the liberty of all Americans,” Donald McGahn II, the White House senior counsel, told The New York Times.
Over the past eight years, Obama’s nominees to the federal bench played a critical role in judicial rulings that paved the way for the legalization of same-sex “marriage.”
“To the extent that there is an Obama legal legacy, it centers on gay rights and voting rights,” said Jeffrey Toobin, senior legal analyst for CNN, in a 2014 assessment of Obama’s impact on the federal courts in The New Yorker, where he is a staff writer.
Looking ahead, Trump’s nominees could help secure protections for religious freedom as an increasingly secular culture parts ways with organized religion and biblical teachings on marriage and sexual ethics.
At the same time, the heated debate over Trump’s religious-liberty executive order has also deflected attention from legislative action that could either beef up conscience rights, or, say some, strike a balance between religious freedom and “LGBT” rights.
“When it comes to LGBT and marriage-related issues, there are those who want Trump to do something quite aggressive and are disappointed that he did not,” said Schultz. “Others would say, ‘No, better to save our political capital for future legislative engagement.’”
“An executive order is, by definition, a short-term policy change,” he added. “If the choice is between short-term and nothing, short-term might be preferable, but most would like to see policy changes that will outlast this administration, and that is going to involve legislation of some kind.”
As the debate over the executive order and the evolving priorities of the Trump White House continues to simmer, Church leaders acknowledge that churches must also do more to register their own support for “the first freedom.”
“We are dealing with a very strong cultural current, this tsunami of secularism,” Cardinal Wuerl told the Register, as he considered the array of challenges facing the Church, including the particular problem posed by gender-identity ideology.
Still, the Washington archbishop said there was reason to hope that the battle for religious freedom could be won, and he pointed to the strong, unified response of Catholic and Christian leaders who, along with the Little Sisters of the Poor, filed legal challenges to the HHS mandate over the past four years. EWTN, the parent company of the National Catholic Register, is among those organizations that filed a case against the mandate.
Cardinal Wuerl said he also has found inspiration in Pope Francis’ ability to bypass the secular filter of global media and bring Jesus Christ and his teachings to ordinary people.
The New Evangelization asks each “follower of Christ to become an evangelizing disciple,” the cardinal said.
“Statements from the bishops’ conference or pastoral letters won’t touch individual believers’ hearts. You have to be the voice for those values.”
Joan Frawley Desmond is a Register senior editor.