The President Gets Paradoxical about Religious Freedom

About Frederick Clarkson

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2017 LGBT Solidarity Rally in front of the Stonewall Inn in solidarity with immigrants, asylum seekers, and refugees. (Photo: mathiaswasik via Flickr)

During the presidential campaign and since assuming office, Donald Trump has repeatedly promised the Christian Right that he would make religious freedom a priority. In an apparent bid for their support, Trump made clear that he would advance the tripartite Christian Right agenda of “Life, marriage and religious freedom” that the Christian Right has focused on since the publication of the Manhattan Declaration in 2009. He also implied he would give them an unprecedented role in governance, in both personnel and policy. But candidate Trump’s claim to be “prolife” seemed opportunistic given his prior views on abortion rights and support for Planned Parenthood. The disconnect between Trump’s support for LGBTQ rights—from which he did not back away, while demurring on marriage equality—compelled him to emphasize religious liberty when he appeared before Christian Right audiences during the campaign even as he featured his support for LGBTQ rights in his acceptance speech at the Republican National Convention. He apparently will honor his commitments to seemingly mutually exclusive views—by navigating religious liberty based exemptions to the law.

This—Trump’s dance around LGBTQ rights and his commitments to the Christian Right—promises to be one of the paradoxes of the Trump era.

Trump’s dance around LGBTQ rights and his commitments to the Christian Right—promises to be one of the paradoxes of the Trump era.

Many had expected Trump to issue an executive order that would provide federal employees, contractors, and grantees broad religious exemptions from LGBTQ non-discrimination policies. That would be in keeping with Trump’s promise to sign the profoundly anti-LGBTQ First Amendment Defense Act (FADA) and support the repeal or reform of the Johnson Amendment, which proscribes electioneering by organizations that enjoy the privilege of a federal 501(c)(3) tax- exempt status. The latter has long been a goal of the Christian Right, which has advanced its cause in part by encouraging churches to bend and sometimes break these regulations.

A far-reaching draft executive order surfaced by Sarah Posner in The Nation reads like a wish list of the Christian Right’s goals, including legal exemptions for people and organizations that claim religious objections to same-sex marriage, premarital sex, abortion, and trans identity. The draft order also appeared to require agencies to provide extensive exemptions from numerous federal laws, and in ways that far exceed what the courts have ever allowed to accommodate religious beliefs.

Brian Fischer of the American Family Association was so excited that he declared the draft order to be “a masterpiece… the Sistine Chapel of religious liberty… It is stunningly and brilliantly crafted and ought to be circulated to every nook and cranny in the United States.” He went on to call it “the Magna Carta of religious Liberty” and compared Trump to Abraham Lincoln and Martin Luther King, Jr. Fischer is not usually a good source of facts, but his premature excitement is worth noting; Christian Right leaders were indeed pleased.

But the immediate public brouhaha generated by interest groups and intensive press coverage of the draft executive order led conservatives to worry. Ryan T. Anderson, the anti-marriage equality guru at the Heritage Foundation to plead: “Mr. President: Don’t Cave to Liberal Fearmongering. Protect Religious Freedom.”

Donald Trump speaking at the 2013 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Photo: Gage Skidmore via Flickr)

As it turned out conservative concerns were well founded. In the end, Trump not only kept in place the non-discrimination executive order issued by president Obama in 2014, but a White House faction had very publicly prevailed on the president to stay true to his promise to support LGBTQ equality.

The New York Times reported that instead of advancing the draft order, “White House officials pushed out a statement asserting that Mr. Trump ‘is determined to protect the rights of all Americans, including the L.G.B.T.Q. community,’” adding that the president “‘continues to be respectful and supportive of L.G.B.T.Q. rights, just as he was throughout the election.’” David Gibson of Religion News Service (RNS) observed that the statement employed “powerful language that used the community’s own ‘LGBTQ’ identifier while vowing that Trump would be ‘respectful and supportive of LGBTQ rights.’”

The White House statement continued that Trump was “proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression.”

RNS further reported that the prelates who lead the U.S. Conference of Catholic Bishops’ religious freedom and family life committees called Trump’s decision not to rescind Obama’s executive order “troubling and disappointing.” Archbishop Charles Chaput of Philadelphia and Archbishop William Lori of Baltimore said the workplace discrimination protection order “creates problems rather than solves them,” by creating “new forms of discrimination against people of faith.”

Posner wrote that the draft in circulation among federal staff and advocacy organizations, construed “religious organizations so broadly that it covers ‘any organization, including closely held for-profit corporations,’ and protects ‘religious freedom’ in every walk of life: ‘when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.’”

“The draft order,” Posner concluded, “seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act. “

Of course, the Christian Right has sought to cast its anti-LGBTQ and anti-abortion views as if they were synonymous with religious freedom itself, and thus seek to give their actions that may conflict with the religious and civil rights of others a privileged position above and beyond the laws that apply to the rest of us. Indeed, the religious views of many people include seamless support for reproductive and LGBTQ rights, including marriage equality. Religious liberty belongs to everyone, not merely those who hold certain views on abortion and aspects of human sexuality.

Religious liberty belongs to everyone, not merely those who hold certain views on abortion and aspects of human sexuality.

That was certainly the view of the leaders of the million-member United Church of Christ, which rejected this effort to elevate four religious beliefs over all other religious beliefs: marriage is between one man and one woman, sexual relations are properly reserved for a marriage between one man and one woman, biological sex is an immutable objective characteristic that is determined before or at birth based on anatomy, physiology, or genetics, and life begins at conception.” The UCC leaders also observed, “The draft reflects a significant shift in position from the religious accommodation rules under the Bush and Obama administrations, to one of religious superiority.”

Resolutions of Trump’s paradoxical approach to LGBTQ issues going forward will turn on the meaning of religious freedom. If it is the version adopted by the Christian Right and the Catholic Bishops, religious freedom will include the right to act on bigoted views, and equal rights will be in jeopardy as groups and individuals are allowed to self-exempt themselves from the law. If on the other hand the administration takes a more traditional approach, comparatively minor issues of religious accommodation will be tailored to the occasion as necessary, as was recommended by the U.S. Civil Rights Commission in 2016.

This hole in the Christian Right’s argument—that illegal actions are necessarily synonymous with constitutionally protected expressions—was inadvertently revealed by Tony Perkins of the Family Research Council and amplified by Ryan T. Anderson of the Heritage Foundation.

Perkins claims that the draft executive order recognized that “religion should not be confined to a home or house of worship alone, but to ‘all activities of life,’ such as those that involve social services, education, health care, employment, obtaining ‘grants or contracts,’ or otherwise participating in the ‘public square.’ Religious expression has every right to exist in the public square as do other forms of expression…”

The self-exposed problem here is that while free expression does enjoy wide protection, and expression can take the form of actions, expression is not to be conflated with acts of discrimination or any other crime. And individuals and institutions, religious or otherwise, have no authority to exempt themselves from the law.

And yet the administration’s apparent intention was to do just that, according to a detailed analysis of the draft executive order by the Center for Constitutional Rights. Most people think of the religious liberty argument as primarily about reproductive rights and LGBTQ issues, and while those have been the high profile battle grounds, the war of exemptions from civil rights and labor laws and pension rights to which conservative religious institutions would rather not adhere is broader and deeper, as the CCR analysis makes clear:

While several provisions clearly target same-sex marriage, gender identity, and the exercise of reproductive rights, other provisions would create special federal immunity from liability for discrimination on virtually any basis–including race, national origin, and religion–and by virtually anyone or any thing, as it expands the scope of who can claim religious exemptions to include corporations, companies, associations, firms, partnerships, societies, and even joint stock companies, with no religious purpose.

“The [Executive] Order” the CCR analysis continued, “would allow for the flouting of any number of generally applicable laws, if such actions or inactions are claimed to be motivated by a sincerely held religious belief or conscience. It would also immunize speech that could constitute workplace harassment or harassment in the spheres of education or housing, and undermine enforcement of laws prohibiting identity-based violence.”

While the president refused to sign any version of this draft executive order, at least for now, the issues that it raised and the paradoxes it helped illuminate may soon be at the center of the debate over proposed congressional legislation. The issues it sought to address will reemerge in legislative form in the proposed First Amendment Defense Act (originally sponsored by Paul Labrador (R-ID) in the House and by Ted Cruz (R-TX) in the Senate); and legislation intended to repeal or reform the Johnson Amendment––both of which Trump has promised to sign if they reach his desk.

 

 

Frederick Clarkson is a senior fellow at Political Research Associates. He co-founded the group blog Talk To Action and authored Eternal Hostility: The Struggle Between Theocracy and Democracy. Follow him on Twitter at @FredClarkson.