After months of rumors, President Donald Trump finally signed an executive order on religious freedom. At his press conference, he delivered forceful remarks that many conservatives have longed to hear from the president, “[n]o American should be forced to choose between the dictates of the federal government and the tenets of their faith.” And the order itself includes similar language, “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.”
But when it comes to creating actual legal protections — the stuff that makes an immediate difference in the real world — the President’s order is short on specifics and doesn’t include half of what was in a prior draft. So while people of faith are heartened by the President’s gesture, they are left to hope that this is just the beginning — not the end — of the President’s efforts to secure religious freedom. In other words, they hope that this isn’t just a gesture, but is a harbinger of real action to come.
On the campaign trail, Trump announced that “[t]he first priority of [his] administration will be to preserve and protect our religious liberty.” Prior to the executive order, he hadn’t done much, if anything, specific to religious freedom. So this order is his first attempt to engage on this issue, and for many supporters of religious freedom, it leaves much to be desired.
The executive order has four primary sections. First, it includes broad language declaring that “the policy of the executive branch” is “to vigorously enforce Federal law’s robust protections for religious freedom.” This sounds significant, but it has no effect until federal officials apply it in specific circumstances.
Second, the order instructs IRS officials to protect the freedom of churches and houses of worship to speak about “moral or political issues from a religious perspective.” Again, this seems like a game-changer, but the Johnson Amendment is an existing federal law that authorizes the IRS to punish certain political speech by churches. Trump’s executive order does not undo the Johnson Amendment — nor could it. So the impact of the order’s second section is quite limited. (Incidentally, Congress is considering the Free Speech Fairness Act, which is a legislative solution to the free-speech problems created by the Johnson Amendment).
Third, the order directs federal officials, including the Secretary of the Department of Health and Human Services, to consider issuing amended regulations that would protect nonprofit groups with faith-based objections to providing abortion pills in their insurance coverage. Those groups range from religious universities like Geneva College to social-service organizations like the Little Sisters of the Poor. A directive to consider fixing the problem is not what I’d consider a strong affirmation of religious freedom, particularly given that the Supreme Court in the Zubik v. Burwell case already told HHS to do this nearly a year ago.
Fourth, the order tells the Attorney General to issue guidance interpreting religious liberty protections in Federal law. Once again, this doesn’t provide any concrete safeguards for people of faith.
Religious-freedom advocates have been mixed in their response to the order. Some groups, like the Family Research Council, applaud it as a significant first step to defending religious liberty. Others, like the Heritage Foundation, observe that it doesn’t take on the most pressing religious liberty threats. I think the best response is to reserve judgment until we see what Trump’s administration does with the vision he cast in the order.
This can go one of two ways. Federal officials will throw the order onto their shred piles and ignore its hortatory language. HHS officials ordered to consider issuing amended regulations will ponder the question for a moment, maybe even seek comments from the public, and fail to take satisfactory steps toward resolution (which is exactly what they’ve done for the past year). If this is how the situation unfolds, religious-freedom advocates, much like the Trump supporters still looking for the wall, will grow disillusioned and cynical.
Or the federal government will snap into widespread action in defense of religious freedom. Federal agencies will take to heart the order’s sweeping directives to “vigorously enforce Federal law’s robust protections for religious freedom,” safeguard everyone’s right “to exercise religion and participate fully in civil life,” and “protect the freedom of persons and organizations to engage in religious and political speech.” And HHS officials will amend Obamacare regulations to extend the existing exemption for churches to other faith-based nonprofit organizations.
In this scenario, when Attorney General Sessions issues “guidance interpreting religious liberty protections in Federal law,” he will do so in circumstances where the threats to religious freedom are most palpable. And his guidance will provide unequivocal protection for people of faith. If he wants, General Sessions could start by condemning the Department of Agriculture’s efforts to shut down Donald Vander Boon’s meatpacking facility, West Michigan Beef Company, simply because he put literature explaining his views about marriage in the company’s break room. (Full disclosure: Vander Boom is represented by Alliance Defending Freedom, the organization that I work for).
It is only through these sorts of tangible actions that religious-freedom advocates will know President TrumpDonald TrumpOhio Republican who voted to impeach Trump says he won't seek reelection Youngkin breaks with Trump on whether Democrats will cheat in the Virginia governor's race Trump endorses challenger in Michigan AG race MORE is serious about making religious liberty his administration’s “first priority.” Without concrete steps, many will come to believe that all the talk about protecting people of faith was just campaign bluster.
The President still has a chance to make good on his campaign promise about religious freedom. But it’s going to take more than this executive order.
Jim Campbell is senior counsel with Alliance Defending Freedom, which defends religious freedom in the U.S. and worldwide.
The views of contributors are their own and are not the views of The Hill.
Disclosure: Vander Boom is represented by Alliance Defending Freedom, the organization that the author works for.