New President, New Congress, New Challenges

What To Expect For Church-State Separation In 2017 – And Beyond

Donald J. Trump’s surprising presidential victory has sparked anxiety among religious and non-religious minorities, wo­men, the LGBTQ community and others.  Lots of people are speculating about the challenges on the horizon for the next four years.

Regardless of whether or not Trump was merely playing the role of a devout Christian to stock up on votes, one thing to know for sure is that the Religious Right is expecting a lot from him in return – and he’s already hard at work returning the favor.

According to post-election data from the Pew Research Center, white evangelical Christians backed Trump at a slightly higher percentage (81 percent) than they did George W. Bush, Mitt Romney (both receiving 78 percent) and John McCain (74 percent). And, in return, this constituency will expect Trump to comply with its demands.

Trump’s campaign promises raise a lot of concerns. If he walks the walk and is backed by the Republican-majority Congress, the road to preserve true religious freedom and church-state separation could be a rocky one.

Trump wasted no time assembling advisors and a cabinet that generated controversy. He quickly appointed Steve Bannon, who runs a website that has spewed hateful speech toward Jews, Muslims and Catholics, as his chief strategist.

By appointing Bannon, Trump may have pleased his hardcore base, but the move left many others feeling uneasy. Bannon has ties to white nationalism and an extreme movement known as the “alt-right,” a loose conglomeration of mostly young white men who use the internet to spew racist, anti-immigrant and misogynistic views.

Shortly after the election, Trump appeared on “60 Minutes” and when asked, said he’s “saddened” by the rise in hate crimes perpetrated by some of his supporters, and he called on them to stop. But he also quickly diverted the blame to the media and seemed unwilling to accept that the racially charged rhetoric he employed during the campaign may have played a role. 

“I think it’s horrible if that’s happening. I think it’s built up by the press because, frankly, they’ll take every single little incident that they can find in this country, which could’ve been there before,” Trump told CBS correspondent Lesley Stahl. “If I weren’t even around doing this, and they’ll make into an event because that’s the way the press is.”

But Trump critics say he must take responsibility for his often-heated rhetoric. In the first week alone following Trump’s win, 315 hate-inspired incidents, a majority targeting Muslims, were reported, according to a Southern Poverty Law Center report.

Religious minorities are bracing for at least four years of hostility toward them. Trump’s attempt to blame the media does not overshadow the fact that one of his top campaign talking points was that he would ban, register or suspend Muslim immigrants from entering the United States.

Trump never offered a specific plan, however, and his proposals have been all over the map.

Concerns heightened when Kansas Secretary of State Kris Kobach (R) was floated as director of the Department of Homeland Security. While working under the Bush administration’s Justice Department, Kobach was in charge of the National Security Entry-Exit Registration System, which primarily targeted male immigrants from Muslim-majority countries in what administration officials insisted was an anti-terrorism effort. 

The program was essentially shut down by the Obama administration in 2011 when it delisted all 25 countries from the program, although it was clear even as early as Bush’s first term that the program was not working. The infrastructure remains, however, and Kobach has proposed updating and reinstating that system, even though the program never led to even one terrorism conviction. 

Trump’s incoming chief of staff and GOP Chairman Reince Priebus said during a Nov. 20 appearance on NBC’s “Meet the Press” that he wouldn’t rule out banning immigrants from war-torn countries as long as it’s not explicitly a “Muslim ban.”  (For more on the Muslim reaction to Trump’s election, see “Fear Factor,” page 10.)

And with Bannon and possibly Kobach as a part of his administration, Trump’s decision to nominate U.S. Sen. Jeff Sessions (R-Ala.), who has previously described church-state separation as an “extra-constitutional doctrine” and “a recent thing that is unhistorical and unconstitutional,” to be attorney general signals the far-right direction his upcoming administration appears to be heading.

Sessions has attacked secular government, supports government-erected Ten Commandments displays, backs creationism being taught in public school science classrooms, has called a Muslim ban “biblical” and believes religious views can trump reproductive and LGBTQ rights. 

He’s openly expressed his support for taxpayer money funding religious schools. He’s questioned Supreme Court Justice Sonia Sotomayor’s ability to perform her job because he didn’t perceive her as a “religious” Catholic, and he demanded restoring the “so help me God” oath for Judiciary Committee swearing-in ceremonies in 2001.

Sessions’ stance on church-state separation is so extreme that in 1999, he unsuccessfully tried to prosecute Americans United for “voter intimidation” because AU had sent faith leaders letters reminding them that endorsing political candidates at their respective house of worship violates a provision of federal law and hence endangers their tax-exempt status.

Throughout the campaign, Trump called repeatedly for repealing the provision, known as the “Johnson Amend­ment” for its sponsor, then-U.S. Sen. Lyndon B. Johnson (D-Texas). If he’s successful in winning an outright repeal, that could allow churches to endorse or oppose candidates.

This concerns Americans United because the Johnson Amendment protects the integrity of elections, as well as the integrity of houses of worship.

Other Trump appointees, and proposed appointees, have been problematic. Some appear to be unqualified. Trump even offered creationist Jerry Falwell Jr., president of Liberty University, the largest evangelical university in the country, the job of secretary of U.S. Department of Education.

Though he didn’t accept the position, Falwell met with Trump and Vice President-elect Mike Pence to discuss it. Falwell told the Richmond Times-Dispatch on Nov. 15 that he’s “willing to serve in some capacity” within the department.

Trump then gave the top education post to Betsy DeVos, a Michigan Republican Party activist best known for promoting private school vouchers.

With DeVos as Secretary of Education and Falwell as a possible advisor, two pro-voucher and anti-LGBTQ rights voices, public school funding, science curricula and the Obama administration’s Joint Guidance to Help Schools Ensure the Civil Rights of Transgender Students are all threatened.

“The appointment of Betsy DeVos to oversee the U.S. Department of Education is an insult to public education,” Barry W. Lynn, AU’s executive director, said in a Nov. 23 statement. “DeVos is a divisive figure who has spent much of her career working to privatize public education.”

With DeVos running the show, Trump will have a vocal advocate for vouchers in charge of education. During the campaign, he called for spending $20 billion on block grants to states to implement “choice” plans. 

Another troubling appointee is U.S. Rep. Tom Price (R-Ga.), a man who believes religion can be used as a reason to restrict women’s healthcare and LGBTQ rights, to be Secretary of Health and Human Services (HHS).

AU Legislative Director Maggie Garrett said that under Price, HHS could repeal the regulations that ensure that more than 55 million women have insurance coverage for contraception without out-of-pocket costs.

The rights of LGBTQ Americans could also take a hit. As Garrett noted in a post on AU’s “Wall of Separation” blog, Price is a co-sponsor of the misleadingly named “First Amendment Defense Act” (FADA).

“This bill,” Garrett wrote, “would allow businesses, private individuals, and even taxpayer-funded social service providers and government employees to ignore any laws that conflict with a ‘religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman’ or that sex outside of such a marriage is sinful.”

Trump’s vice president, Indiana Gov. Mike Pence, is also expected to be an influential voice in the administration. Pence,  a social conservative and favorite of the Religious Right, could become an unusually powerful vice president. 

An outsized role for Pence could be especially bad for the LGBTQ community, and the country could see a retreat from the progress it’s made to advance equality for all.

While it’s debatable whether Trump, a thrice-married womanizer who has bragged about sexually assaulting women and getting away with it, is truly a changed man of devout Christian faith, there’s little debate where Pence stands. He’s a hero to the Religious Right.

Pence’s fundamentalist views include supporting “conversion therapy,” a discredited, disturbing and dangerous practice that claims to change a person’s sexual orientation or gender identity. While running for Congress in 2000, Pence proposed diverting HIV-prevention money to the practice, which has been condemned by mental health professionals.

He also backed a proposed 2006 amendment to the U.S. Constitution that would have defined marriage as only between a man and a woman, saying that marriage equality would lead to “societal collapse” and calling homosexuality “a choice.”

In 2007, Pence voted against protecting LGBTQ people from workplace discrimination; in 2010, he opposed repealing the military’s “Don’t Ask, Don’t Tell” policy, which prevented service members from identifying as openly LGBTQ while serving.

Pence’s anti-LGBTQ record seems endless, as does his track record of limiting women’s reproductive rights. Pence has some of the most extreme anti-choice stances of any public figure.

He has gutted funding for Planned Parenthood in Indiana as governor. He signed multiple anti-choice laws that restricted women’s access to abortion, regardless of whether they got pregnant through rape, incest or whether the pregnancy endangered their health.

But Pence may be best known for supporting and signing a controversial “religious freedom” law that was intended to allow Indiana residents to cite their religious beliefs as an excuse to discriminate against others. Although the law was allegedly fixed after a public outcry, it remains deeply flawed.

If Pence does indeed fill the void of Trump’s inexperience with his ideas, the state of constitutional rights in the country could be altered significantly, and it starts with the Supreme Court.

Presidents can push ideas, and Congress can turn them into laws, but if they aren’t constitutional, they won’t survive high court review. The precariously balanced court currently has just eight members. Trump has vowed to nominate an Antonin Scalia­like justice to the open seat.

During the “60 Minutes” interview with Stahl, Trump said that appointing a pro-life Supreme Court justice will be important in overturning the 1973 Roe v. Wade ruling, which recognized women’s constitutional rights to access safe and legal abortions in the United States.  

While his road to overturning Roe v. Wade may be more complicated than he thinks, Trump could certainly severely restrict reproductive health care access nationwide with Price as Secretary of HHS.

All of this means that the future of reproductive access is murky, and during the Trump years, efforts to use religion as an excuse to restrict women’s medical decisions will likely be more widespread.

A similar dark cloud looms over LGBTQ rights.

Although Trump said that Obergefell v. Hodges, a 2015 landmark case in which the Supreme Court ruled in a 5-4 decision that same-sex couples have the constitutional right to marry, is “settled,” Religious Right groups believe otherwise, and some have already laid out plans to work with the Trump administration to try to reverse marriage equality.

On Nov. 9, the National Organization for Marriage (NOM), a Religious Right group, stated its intent to pressure Trump and his administration to work toward winning a court reversal of Obergefell and revoking an Obama administration federal guidance that protects transgender public school students from discrimination.  

Anti-transgender rights policies and Supreme Court appointees will affect pending transgender rights cases. 

The Supreme Court is set to hear its first case dealing with transgender rights, Gloucester County School Board v. G.G., which the American Civil Liberties Union filed on behalf of high school student Gavin Grimm. Grimm is suing his public school in Virginia, seeking the right to use the bathroom that aligns with his gender identity. (See “A Grimm Struggle,” page 4.)

NOM also said it wants to help the Trump administration pass FADA.

Even if Senate Democrats use the filibuster to block extreme Trump proposals, there are things he can do unilaterally. He can repeal Obama executive orders that protect LGBTQ Americans and order the U.S. Justice Department to take stands against the separation of church and state in cases pending before the Supreme Court and lower courts. He can also use the bully pulpit to promote the Religious Right’s pet causes.

The Trump presidency and the new Congress will definitely be a challenge, but Americans United is ready to engage. AU will oppose Trump’s plans to repeal the Johnson Amendment, as well as his schemes to restrict LGBTQ, religious minorities’ and women’s rights. Americans United will also work against any plan to send taxpayer dollars to private religious schools through vouchers. 

“Religious freedom is far too valuable for us to lose and far too fragile for us to leave unguarded,” Lynn said in a post-election statement. “Americans United stands at the ready to fight back against any and all of Trump’s dangerous initiatives.”