By Robin Wallace
The executive order ostensibly “restoring” religious freedom that President Trump signed last week landed with a bit of a thud, as religious conservatives who’d been hoping for an edict with sharper teeth were disappointed and civil rights watchdogs who’d been gearing up for battle were able to stand down. The order was a much weaker version of a leaked earlier draft, which allowed the president to deliver on a problematic campaign promise and avoid doing so at the same time.
The language and jargon surrounding the order would suggest that freedom of religion, as defined in the Bill of Rights, is somehow under threat. This is not true. Religious groups — predominantly conservative Christians — want a law that would exempt individuals, institutions and businesses from obeying laws that violated their religious beliefs. The primary motivation behind this appears to involve how Christian organizations interact with the LGBT community: a Christian-affiliated adoption agency that refuses to place a child with a same-sex couple; Christian doctors and hospitals who do not want to treat LGBT patients; small business owners who do not want to provide services to same-sex couples — all citing same-sex marriage and relationships as contrary to their religious beliefs.
Religious groups argue that the anti-discrimination laws that could apply in these situations should not apply, because the perceived discrimination is the result of a religious conviction.
More recent and high-profile examples have involved the Affordable Care Act’s mandate that employee health insurance plans cover birth control. The craft store chain Hobby Lobby and the Little Sisters of the Poor, a Roman Catholic order of nuns, sued, claiming they should not be forced to provide birth control in their employee health plans because the practice violates their religious beliefs. (The ACA exempted religious and faith-based organizations from this provision.)
Trump’s new executive order did not do much to advance this cause. Instead, the president’s order targets the Johnson Amendment, an obscure and almost never enforced law that prevents religious leaders from endorsing candidates from the pulpit and tax-exempt organizations from endorsing candidates. Trump also directed federal agencies to take the lightest touch when investigating religious institutions that get themselves in trouble on discrimination matters. This is significant, because many of these organizations find such troubles by not wanting to comply with the laws that allow them their tax-exempt status. Trump’s directive would allow the IRS, the Justice Department and other agencies to use much wider discretion in looking at, for example, whether a tax-exempt organization was, in fact, contributing to a political campaign.
This is not what the powerful conservative Christian lobby was looking for, but they have also never been able to quite lock down these protections for themselves.
The problem with the executive order is that it is intended to provide a narrow group of people — Christian conservatives — with narrow protections involving the Christian hot points of homosexuality, contraception and abortion, and it becomes tied up with the historical intermingling of Christianity with U.S. law and government. It’s smack right into the ongoing tension between the view of America as an increasingly diverse culture that demands a secular society with absolute separation of church and state, and the position — not without historical or factual merit — that the United States was founded as a Christian country and the removal of Christianity from law and government is a misinterpretation of the First Amendment.
The push for this executive order traces back to a 1993 bill known as the Religious Freedom Restoration Act by way of Vice President Mike Pence and his disastrous attempt to impose Christian law on Indiana during his tenure as governor.
In 1990, the Supreme Court ruled against two drug counselors who claimed their consumption of the hallucinogenic peyote, which was illegal in their state, was part of a Native American religious practice. Justice Antonin Scalia scoffed at the notion of exempting people from laws on the basis of their religion, writing that doing so “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”
Previous to this ruling, the government had to prove a compelling reason for a law to infringe on a person’s religious practices. Faced with a court ruling that switched that burden to the lawbreaker, social conservatives and religious leaders lobbied for a new law that would replace the standard.
The 1993 law, signed by President Clinton, sought to essentially exempt individuals and institutions from obeying laws that violated their religious beliefs. The Supreme Court ruled that the law could not be applied at the state level, and some states have been trying to pass their own version ever since. Religious restoration acts are pending in several states, including Texas, Oklahoma and Alabama. Many of these bills are targeted at adoption and would allow private agencies with Christian affiliations to refuse to place children with same-sex or non-Christian couples. Pence had to water down his measure in Indiana under threat of the NCAA pulling out of the state and its potential to destroy businesses.
The First Amendment bans the government from establishing a religion and from passing laws that would restrict worship. It then guarantees freedom of speech and assembly. However, the First Amendment has never been viewed as absolute. We have laws limiting certain kinds of speech and expression, from slander and libel laws to the outlawing of child pornography. And we have laws requiring permits for parades and protests and otherwise governing public assembly.
We also have laws limiting religious freedom. Otherwise illegal behavior does not automatically become legal because it is claimed to be part of a religious custom, ritual or belief. From genital mutilation to polygamy and child marriage, the United States has outlawed behaviors claimed as religious practices.
On the other hand, the government is fundamentally loath to interfere in the practices of religious groups. Across the county, religious orders and sects form their own communities, obey their own set of laws and live outside of mainstream society. The government usually must be confronted with blatant criminality or heinous depravity before it will act against a religious organization. An Afghan-American who claimed the “honor” killing of his daughter was an exercise of his religion, for example, would be charged with her murder, but he would be allowed to present his religious beliefs as his defense. Whether or not that would work out in his favor would depend on the court.
In the spirit of Scalia’s comments in the 1990 ruling, lawmakers know that a level of religious tolerance must be backstopped by laws that can be enforced when they need to be and that exempting people from the law based on religion is a slippery and dangerous slope. Trump needed and wanted to throw the mighty religious right and his vice president a bone – he just couldn’t give them any meat.
