Editor’s Note: This week and next, “The Wall of Separation” blog will run a series of special posts examining the policy proposals in AU’s “Agenda to Restore & Protect Religious Freedom.” Developed by Americans United’s Public Policy Department, the agenda lists 10 proposals the incoming administration of Joe Biden and Kamala Harris can take to undo the damage done to church-state separation during the Trump years.
Today’s item on AU’s agenda should be a guiding star on religious freedom for the Biden administration: signing an Executive Order to Restore and Protect Religious Freedom for All Americans.
Thanks to the Trump administration and its allies, our nation’s promise of religious freedom has been turned on its head. Trump has misused religious freedom to score political points, cause harm, discriminate and divide our country. To lay out these plans, President Donald Trump early in his term issued an executive order on “religious freedom” prompting extreme rule changes across all agencies of government. Soon after, former Attorney General Jeff Sessions issued guidance called “Federal Law Protections for Religious Liberty.” This guidance provides extreme interpretations of the law in an effort to give a green light to religious exemptions, regardless of how an exemption would affect other people or the public interest.
For the next four years, Trump administration agencies relied on this guidance in justifying harmful policy after policy – denying people access to health care, expanding taxpayer-funded discrimination and attacking LGBTQ civil rights – all under the guise of religious freedom. Even prior to the Trump administration, President George W. Bush’s administration in 2007 adopted an Office of Legal Counsel memo using federal religious freedom law to justify taxpayer-funded discrimination in hiring by faith-based organizations.
Given this harmful trajectory over the years, President-elect Joe Biden must take immediate action to restore the real meaning of religious freedom and right past wrongs. Biden can start by signing an executive order that lays out his blueprint for each government agency to respect the Constitution’s promise of religious freedom.
So what should be included in this executive order? The order should reflect current law, including the Constitution’s do-no-harm principle. The do-no-harm principle, enshrined in the Establishment Clause of the First Amendment, ensures that religious freedom is a shield that protects the rights of everyone to practice their faith or not to practice any faith at all, and not a sword to harm others or to discriminate. The Biden order must also affirm that the government has a compelling interest in upholding protections for civil rights and access to healthcare. Religious freedom should no longer be a justification to deny people their rights.
The Biden order should guide agencies across the government as they rescind any policies that conflict with this vision of religious freedom, like the Sessions’ guidance and the Bush memo. It should serve as a blueprint as Biden agencies enact new policies. And for leftover Trump policies that are still in the bureaucratic pipeline, they should be suspended and never finalized if they conflict with the constitutional principles of religious freedom in Biden’s order.
While this one executive order won’t immediately undo every bad regulation, guidance, decision or action done by the Trump administration, it will make clear to every government agency, and all Americans, that Biden intends to chart a different path. With this executive order, Biden can make a statement that his policies on religious freedom will respect the U.S. Constitution.