Out Of Order

Trump’s New ‘Religious Freedom’ Directives Set The Stage For Attacks On Real Liberty, Says Americans United

For months, there were reports that President Donald J. Trump was preparing an executive order that would negatively redefine religious freedom. On May 4, he signed that order – sort of.

Surrounded by faith leaders on the White House lawn and using the National Day of Prayer as a backdrop, Trump released his misleadingly named executive order, “Promoting Free Speech And Religious Liberty.”

“Today my administration is leading by example as we take historic steps to protect religious liberty in America,” Trump claimed. “We will not allow people of faith to be targeted, bullied or silenced anymore.”

Americans United Executive Director the Rev. Barry W. Lynn had a different view of Trump’s announcement: “Far from protecting religious freedom, this executive order guts that principle. Religious freedom does not mean the right to ignore laws that protect other people and our democracy.”

Trump’s order first takes aim at the Johnson Amendment, a federal law that for more than six decades has protected the integrity and independence of houses of worship and U.S. elections by ensuring tax-exempt organizations don’t endorse or oppose political candidates.

The law, named for then-Sen. Lyndon B. Johnson (D-Texas), was on Trump’s hit list throughout the presidential campaign after he said he learned it was why some faith leaders wouldn’t endorse him from the pulpit. Shortly after his inauguration, Trump again targeted the law during the National Prayer Breakfast, vowing to “get rid of and totally destroy the Johnson Amendment.”

Trump has incorrectly framed the law as restricting the free-speech rights of faith leaders. Maggie Garrett, Americans United’s legislative director, countered this claim on AU’s “Wall of Separation” blog.

“Houses of worship and the faith leaders who represent them have robust speech rights,” Garrett wrote. “They can speak to any issue they choose from the pulpit or in public; write about issues in bulletins or on a website; and within a few boundaries that apply equally to all non-profits, houses of worship can lobby on specific legislation. Just like all other non-profits, they simply can’t endorse or oppose candidates.”

Trump repeatedly has tried to promote the false narrative of pastors being silenced. He said as much during the February prayer breakfast – minutes after he reminded the crowd he’d been publicly endorsed by Religious Right powerhouses the Rev. Robert Jeffress, pastor of a Southern Baptist mega-church in Texas, and Jerry Falwell Jr., president of the fundamentalist, tax-exempt Liberty University in Virginia.

“You’re the people I want to listen to,” Trump told the National Day of Prayer audience, which included his spiritual adviser, Prosperity Gospel preacher Paula White; the Rev. Jack Graham, former head of the Southern Baptist Convention; Washington, D.C., Roman Catholic Archbishop Donald Wuerl; Rabbi Marvin Hier, founder of the Simon Wiesenthal Center; and the Rev. Franklin Graham, son of evangelist Billy Graham.

During his speech, Trump implied these faith leaders hadn’t been able to offer their opinions and advice to the president previously – a puzzling claim considering Trump formed an evangelical advisory board during the campaign and met privately with that board at the White House the night before the National Day of Prayer.

Trump’s order is aimed at weakening IRS enforcement of the Johnson Amendment, but its practical effect remains uncertain. As AU’s Garrett noted, “In reality, this section of the executive order doesn’t really do much. The false rhetoric Trump continues to spread about the Johnson Amendment, however, is dangerous. It is intended to shape the public’s understanding of the law and is a setup for repeal efforts.”

During the same morning that Trump signed the order, a House Oversight and Government Reform joint subcommittee sponsored a hearing on Capitol Hill designed to drum up support for legislation that would weaken or repeal the Johnson Amendment. Republican members of Congress who were present and three-fourths of the witnesses – including representatives from the Religious Right groups Family Research Council and Alliance Defending Freedom – inaccurately framed the law as stifling free speech.

The fourth witness, Rabbi David Sap­erstein, and House members Jamie Raskin (D-Md.), Raja Krishnamoorthi (D-Ill.), Eleanor Holmes   Norton (D-D.C.) and Gerry Connolly (D-Va.), countered that narrative by noting the broad public support for the current law. A multitude of recent polls found the majority of Americans – including Republicans, white evangelical Christians and evangelical pastors – don’t want churches to endorse candidates. They understand this practice could lead to divided congregations, a diminished focus on ministry and houses of worship becoming tools for political campaigns.

“The American people, including our faith leaders, support the Johnson Amendment,” said Lynn. “This move to undercut its protections is the brainchild of a handful of far-right religious leaders who want to boost their own political power.”

Undermining the Johnson Amendment was only one of the goals in Trump’s executive order. It also establishes the groundwork for future attempts to use religion as an excuse to harm women, the LGBTQ community, people of minority faiths, non-believers and others.

Trump directed the departments of Health and Human Services, Labor and Treasury to review regulations regarding contraceptive coverage in the Affordable Care Act (ACA) to “address conscience-based objections.” The ACA, commonly known as Obamacare, requires most employer insurance plans to cover access to birth control with no co-payments. While Republicans in Congress are trying to gut the ACA, this rule remains in place for now.

Some for-profit corporations and religiously affiliated institutions have challenged the contraception coverage requirement, claiming it violates their religious beliefs. Several of these challenges reached the U.S. Supreme Court, including the Burwell v. Hobby Lobby Stores case that resulted in the troubling ruling that businesses could request a religious accommodation to avoid the contraceptive coverage.

Other related cases still are pending, including those involving the Little Sisters of the Poor (members of whom joined Trump in the Rose Garden for his executive order announcement), the University of Notre Dame and other religiously affiliated entities that claim even the act of requesting the religious accommodation infringes on their religious beliefs.

Americans United represents students in the challenge brought by Notre Dame; it is the only contraception case in which women whose coverage is at risk are actual parties to the case. AU also filed a friend-of-the-court brief on behalf of almost 250 students and staff of several religiously affiliated colleges – people who would be harmed if they lose contraceptive coverage.

While Trump’s executive order itself doesn’t immediately change the ACA’s contraceptive regulations, it is a step toward fulfilling this goal held by some – including Health and Human Services Secretary Tom Price, a former House member from Georgia and longtime opponent of the ACA’s birth control provisions.

“Bring me one woman who has been left behind (by not being able to afford birth control). Bring me one,” Price said in a 2012 ThinkProgress interview. “There’s not one. The fact of the matter is, this is a trampling of religious freedom and religious liberty in this country.”

Price wasted no time in announcing his plans to review the mandate. Within an hour of Trump’s announcement on May 4, Price issued a statement: “We welcome today’s executive order directing the Department of Health and Human Services to reexamine the previous administration’s interpretation of the Affordable Care Act’s preventive services mandate, and commend President Trump for taking a strong stand for religious liberty. We will be taking action in short order to follow the President’s instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees.”

AU’s Lynn disagrees with Price’s interpretation of religious freedom.

“Birth control is vital to women’s health and equality,” Lynn asserted. “Allowing bosses to use religion as an excuse to deny their employees insurance coverage for contraception is discrimination, plain and simple.”

The third part of the executive order sets the stage for even more religion-based discrimination. It calls on Attorney General Jeff Sessions to “issue guidance” to all federal agencies on the scope of religious freedom protections in federal law. This hints at the shockingly broad scope of the draft executive order that was leaked in early February, and that many feared Trump was preparing to sign on May 4. The original order would have authorized religion to be used as justification to discriminate in hiring, public services and benefits, health care, adoption and foster care services, education and more. It would have targeted the LGBTQ community, women, people of minority faiths, non-theists and almost anyone else.

That Sessions is leading this review is troubling. During his years as a U.S. senator from Alabama, Sessions supported legislation that would have allowed businesses to cite religious beliefs as an excuse to discriminate against LGBTQ people, and he was a critic of allowing same-sex couples to marry. As attorney general, he already has joined with Education Secretary Betsy DeVos in revoking federal guidance to public schools about civil rights protections for transgender students.

“We know that many in the Trump administration, including Sessions and Vice President Mike Pence, want to sanction the use of religion as an excuse to roll back equality for LGBTQ people and women,” said AU’s Garrett. “And so, we’re rightly concerned.”

“Americans United fights every day to protect religious freedom for all and we embrace our nation’s rich diversity of faiths and beliefs,” AU’s Lynn said. “We will fight any efforts to tamper with this fundamental value, to undermine its protections, or to sanction discrimination or harm to others in the name of religion.”

Reaction to Trump’s executive order was mixed – even among conservatives and those advocating for the order. Some conservatives were disappointed Trump’s order did not go further in weakening the Johnson Amendment, or in using religion to justify discrimination.

David French, a writer for the conservative National Review, referenced “the dangerous nothingness of this executive order” in a column calling the order “worse than useless.”

Ryan Anderson, a scholar at the conservative Heritage Foundation, termed the order “woefully inadequate” and called on Congress to pass legislation that would accomplish what Trump’s order did not.

Several Religious Right leaders were more diplomatic in their critiques, calling the order the first step toward actions they hope Trump and his administration will take.

“Obviously, if this is the end of the story, I’m really disappointed, but I think we ought to hold out the hope that this is just the beginning and that there are more steps to be made,” Russell Moore, a leader in the Southern Baptist Convention who came under fire for questioning Trump’s morality during the campaign, said on CNN. “The very fact that religious freedom is part of the conversation and religious freedom is being affirmed, I think, is a step in the right direction.”

Jeffress, who joined Trump at the White House on the eve of the National Day of Prayer announcement, called the order “historic” during an interview on the Fox News program “The Story with Martha MacCallum,” on which he was joined by AU’s Lynn.

“I think today’s executive order was a giant step. But I look at it … more as a compass than a road map. I think there are more details to come, but I think it’s saying, we are changing the direction, government is, (in) its attitude toward religion,” Jeffress said. “We’re doing a giant U-turn. We’re going to start protecting religious liberty instead of assaulting it.”

Some of AU’s allies reacted to the order with alarm.

Sarah Warbelow, legal director for the LGBTQ advocacy group Human Rights Campaign, said her organization was preparing for battle.

“Donald Trump just let the fox into the hen house,” Warbelow said. “Through this executive order, Trump has directed Attorney General Jeff Sessions – a man who has denied LGBTQ people equality under the law – to seek a license to discriminate across all areas of the government. …We are watching and we will challenge any effort by Jeff Sessions or other agencies of Trump’s Administration to license discrimination.”

But the American Civil Liberties Union (ACLU) was underwhelmed by the order. The ACLU had initially announced its intention to file a lawsuit challenging the president’s directives, but once the organization had the opportunity to read it, officials announced it does so little that it doesn’t warrant litigation – yet.

Americans United continued to express concern that the order will sow confusion and may lead to legislative proposals in Congress or regulatory changes that could cause lasting harm.

“Exploiting the National Day of Prayer to trample religious freedom highlights Trump’s zeal to substitute showmanship for sincerity,” said Lynn. “Today, the president pandered to his far-right fundamentalist base, upending protections for houses of worship and allowing religion to be used as an excuse to deny women coverage for contraception and other preventive health care.”