President Trump’s executive order on free speech and religious liberty, while welcome, is rather weak. It is woefully inadequate in meeting the challenges of our time.
Congress must act, therefore, to address the major threats to religious liberty in the United States today. It must correct the violations that took place during the previous administration, and prevent future administrations from violating the religious liberty rights of Americans.
Trump’s EO contains three main components. First, it contains general language about the importance of religious liberty, saying the executive branch “will honor and enforce” existing laws and instructing the Department of Justice (DOJ) to “issue guidance” on existing law.
Second, it instructs the Department of the Treasury to be lenient in the enforcement of the Johnson Amendment—a law limiting the political activities of 501c3 organizations—as applied to religious organizations.
And third, it instructs the secretaries of the Treasury, Labor, and Health and Human Services (HHS) to “consider issuing amended regulations” to “address conscience-based objections” to the HHS contraception mandate.
So why is it weak? The first component simply reiterates what already exists — the federal government should be honoring and enforcing our religious liberty laws anyway. On the second, legislation—such as the Free Speech Fairness Act—is required to actually address the Johnson Amendment, which doesn't concern the most pressing religious liberties facing Americans. And on the third, the EO merely tells the agencies to “consider” new regulations, but the Supreme Court has already unanimously instructed the federal government to resolve the case of Little Sisters of the Poor and other HHS mandate cases.
Much more is needed. Congress should give President Trump the opportunity to sign robust religious liberty protections. Lawmakers must take the lead not just on these three issues, but on the most pressing religious liberty challenges of our day.
The Russell Amendment protects the abilities of religious organizations to make staffing decisions in keeping with their religious identity and mission. It provides protections and exemptions consistent with the Civil Rights Act and Americans with Disabilities Act to all religious organizations that contract with the federal government or receive grants.
The Conscience Protection Act creates a private right of action that allows people to sue in federal court if they believe there has been a violation of the Weldon Amendment, which prevents federal, state and local governments that receive certain federal funds from discriminating against health care entities that decline to “provide, pay for, provide coverage of, or refer for abortions.” This would address unlawful policies in California and New York that force all health care plans to cover abortion.
The First Amendment Defense Act prevents federal agencies from discriminating against individuals or institutions for following their convictions about marriage as a man-woman union by revoking their non-profit tax status, or denying them government grants, contracts, accreditation or licenses.
President Trump promised to sign into law both the Conscience Protection Act and the First Amendment Defense Act. Congress should send them to his desk.
These protections would take nothing away from anyone. They simply would ensure that the public square remains open to all religious voices, even when those voices diverge from the government’s view on contested questions. They would protect diversity, pluralism and tolerance. They are a license to participate.
As I explain in my new book from Oxford University Press, “Debating Religious Liberty and Discrimination,” religious liberty is a birthright of all Americans. And yet over recent years, Americans have seen their religious liberty rights under assault as never before.
Congress must act so that all Americans may seek out and serve God and their neighbors according to their own convictions, not the government’s.
All Americans should remain free to worship God, serve the poor, educate the next generation, and run a business, all in accordance with their religious beliefs—whatever those religious beliefs happen to be. We should all be subject to the same legal standard: Government can only substantially burden the free exercise of religion if it is acting to advance a compelling government interest pursued in the least restrictive way possible.
This piece originally appeared in The Hill on 5/4/17