Trump and Religious Liberty

Two years into Donald Trump’s presidency, conservative religious voters who supported him despite reports of his personal immorality appear to have been vindicated. Religious freedom has turned out to be, as candidate Trump promised, one of President Trump’s chief priorities. And he has prioritized it to good effect.

Three months into his ­presidency, Trump addressed religious leaders in the Rose Garden. Among them were members of the Little Sisters of the Poor, the face of ­conscientious objection to the Obama-era contraceptive mandate. Trump invited two of the sisters to the stage and told them, “Your long ordeal will soon be over.” He then signed an executive order “Promoting Free Speech and Religious Liberty.”

The order committed the executive branch to discharging a duty the previous administration had ­neglected: “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom.” The Obama administration, rather than enforce these protections, had tweaked administrative rules so as to force religious individuals and organizations into litigation to defend their right to free exercise. Though closely held for-profit corporations received hard-won relief under the Supreme Court’s decision in Burwell v. Hobby Lobby (2014), nonprofit ministries such as the Little Sisters of the Poor had been compelled to return to court.

The Executive Order on Free Speech and Religious Liberty ended the Obama-era aggression. The White House premised the order on the vision of the founders for “a Nation in which religious voices and views were integral to a vibrant public square,” a nation in which the faithful would be “free to practice their faith without fear of discrimination or retaliation by the Federal Government.”

President Obama famously told a deadlocked Congress, “I’ve got a pen, and I’ve got a phone.” When Congress refused to give him the legislation he wanted, he employed both pen and phone, leading many to complain that the business of lawmaking was being taken over by the administrative state. Not so President Trump on religious liberty. His executive order noted plainly: “Federal law protects the freedom of Americans and their organizations to exercise religion.” Thus, no new laws were needed. The only change required was to see to it that existing laws be fully implemented and faithfully executed.

That commitment to executing the law, and thus protecting the free exercise and religious conscience of ­Americans, culminated in Section 4 of the executive order, which directed the attorney general to “issue guidance interpreting religious liberty protections in Federal law.” A few months later, that guidance came before the president’s cabinet. In a twenty-­five-page memo, then–­Attorney General Jeff Sessions outlined twenty principles of religious freedom and guidance for their implementation, followed by an appendix chock-full of supporting case law.

The guidance was new—no president had ever before directed an attorney general to provide it—but its content was not. Attorney General Sessions announced no new rules and proposed no new laws. He simply explained what the law was and how the agencies were to regard it.

Sessions’s guidance affirms the various protections of the Religious Freedom Restoration Act (RFRA). Paragraph 11 notes that though RFRA quite clearly protects individual citizens, it should also be read as extending to “organizations, associations, and at least some for-profit corporations.” The citation adduced for this interpretation is Burwell v. Hobby Lobby. In that decision, Justice Samuel Alito, writing for the majority, pointed to the Dictionary Act’s definition of the word “person,” which happens to anticipate the language of paragraph 11 of the Attorney General’s guidance on ­religious liberty: “The wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

President Trump, through Attorney General Sessions, was applying to the executive branch what Justice Alito’s opinion in Hobby Lobby had made plain: “No known understanding of the term ‘person’ includes some but not all corporations.” No longer may agency heads restrict the effect of RFRA to the individual or nonprofit; rather, RFRA’s protections are to be read—and applied—expansively.

Sessions highlighted the restraint placed upon government by the right to religious liberty. When engaging in enforcement actions, “agencies should remember that RFRA applies to agency enforcement just as it applies to every other governmental action.” Nothing new, just a reminder that religious liberty law serves as a check on the administrative state, to the benefit of a free people.

Executive agencies took notice. The U.S. Department of Health and Human Services crafted rules ending the Little Sisters’ “long ordeal.” Under the new rules, the federal government would exempt from any requirements relating to “the provision of contraceptive services” any group health plan or insurance coverage maintained by an “objecting organization” such as a church, religious order, religious school, nonprofit organization, or other non-­governmental employer.

The Department of Justice began to resolve outstanding cases. By October 2017, past litigants over the Obamacare contraceptive mandate had begun to settle with the Justice Department. The Hill reported in January 2018 that settlements had reached nearly $3 million, most of it going to the international law firm Jones Day, which had initially sought more than $29 million.

The point is not the size of the payouts—it’s typical for federal lawsuits to be settled for pennies on the ­dollar—but the speed of them. Within a year of his inauguration, President Trump’s administration had brought to conclusion the vast majority of the religious conscience litigation that had stretched on for almost the entire duration of the previous administration.

A comparatively underreported achievement of the Trump administration has been the support provided by the Justice Department to religious liberty litigants. The administration is on pace to file more statements of interest in ongoing religious liberty litigation and more friend-of-the-court briefs than either of President Trump’s two immediate predecessors. This litigation includes cases such as The American Legion v. AHA, in which Principal Deputy Solicitor General Jeff Wall spent time in oral argument against the idea that the Establishment Clause requires a World War I memorial to be removed from public property because it is in the shape of a cross. (Full disclosure: My firm, First Liberty Institute, represents The American Legion.)

Sessions also revised the manual for the incoming United States Attorney class, requiring that all matters touching religious freedom be referred to Justice Department headquarters. He launched the Justice Department’s Place to Worship Initiative, investigating and litigating threats to the nation’s houses of worship. He instituted a “Religious Liberty Task Force,” whose mission was to institutionalize the protection of religious liberty in the Justice Department.

The Department of Education took action as well, exploring whether to clarify religious schools’ exemptions from Title IX requirements. Title IX previously had exempted religious educational institutions in cases where compliance “would not be consistent with the religious tenets” of the institution. This exemption became worthless, however, when the Obama-era Department of Education began to shame these institutions by publishing the names of religious schools receiving exemptions on a department website. Activist organizations carried the information to a more-than-willing media, questioning, mocking, and harassing the religious convictions of these schools and their students.

The Department of Education under President Trump quickly removed the website listing the exempted schools and reiterated the exemptions, which had been in the law since the passage of the Education Amendments of 1972. Such a simple act was, once again, consistent with Sessions’s guidance: Executive agencies are to implement and apply the law protecting religious liberty that is already on the books.

About a month after the formation of the Justice Department task force on religious liberty, the Department of Labor reversed Obama-era hiring practices that had discouraged religious contractors from competing for federal contracts. Under Trump, the Office of Federal Contract Compliance Programs issued a directive requiring the department’s staff to take recent “legal developments into account” when enforcing federal ­contracting rules.

Which recent legal developments? Among them, Hobby Lobby, which reminds federal contractors of the impact of RFRA, and Trinity Lutheran v. Comer (2017), which maintains that government officials cannot disqualify religious organizations from participation in a public program. Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) also requires the tolerance of the religious beliefs of program participants.

At the State Department, Secretary Mike Pompeo has made religious freedom a prominent part of foreign policy. In an interview with CBN in January 2019, Secretary Pompeo stated, “We stand for religious freedom every place American diplomacy is at work.” That is consistent with Pompeo’s institution in 2018 of the “Ministerial to Advance International Freedom.” The ­Ministerial intended to “focus on concrete outcomes that reaffirm international commitments to promote religious freedom and produce real, positive change.” It brought together stakeholders—NGOs, elected leaders (including Vice President Mike Pence), foreign ministers, and religious leaders—within the international community “to combat religious persecution and discrimination, and ensure greater respect for ­religious freedom for all.” Rarely has the United States government given more than passing mention to the problem of religious persecution, let alone convened international representatives to discuss a solution: the protection and promotion of “freedom of religion or belief.”

In addition, the president appointed Sam Brownback to the post of Ambassador at Large for International Religious Freedom, a State Department position heading an office with “the mission of promoting religious freedom as a core objective of U.S. foreign policy.”

Most remarkably, the Department of Health and Human Services has created within its Office for Civil Rights a division devoted to conscience protections and religious freedom. The agency whose regulations concerning abortifacients spawned dozens of lawsuits during the Obama years now houses personnel charged with correcting those regulations. Those personnel include the director of the HHS Office for Civil Rights, Roger Severino, who is a veteran of the Justice Department’s efforts to enforce the Religious Land Use and Institutionalized Persons Act, and former chief operations officer for the Becket Fund for Religious Liberty (the law firm that represented the Little Sisters of the Poor).

In battles over judicial nominations, the administration has fared well against progressive senators eager to score points with their bases. California Senator Dianne Feinstein lobbed the first grenade at now-Judge Amy Coney Barrett when she declared that Barrett’s “dogma lives loudly” and might be disqualifying. New Jersey Senator Cory Booker asked judicial nominee Neomi Rao whether she believed homosexuality was a sin.

Utah Senator Mike Lee, a Republican, rightly explained that such questions violate Article VI of the U.S. Constitution’s prohibition on a religious test for office: “I can’t fathom a circumstance in which it’s ever appropriate for us to ask a nominee about his or her religious beliefs about whether x, y or z is a sin.”

Thus far, none of the nominees so questioned has been abandoned by President Trump. All who have received votes before the full Senate have been confirmed.

Justice Brett Kavanaugh recently authored a statement explaining the denial of review in a religious liberty case involving government aid used to maintain and restore historic houses of worship. Acknowledging that the case required further development, Justice Kavanaugh noted: “Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.”

Justices Gorsuch and Kavanaugh also joined a statement explaining the Court’s denial of review in a case involving a high school football coach (another First Liberty Institute client) fired for taking a knee in silent prayer. There, the Justices hinted that they might be willing to reconsider Employment Division v. Smith, a 1990 decision by the Court long decried by religious liberty advocates. Justice Gorsuch also analyzed Smith at length, sometimes critically, in his concurring opinion in Masterpiece Cakeshop.

At recent oral arguments in The American Legion v. AHA, Justices Gorsuch and Kavanaugh questioned a 1971 decision by the Supreme Court, Lemon v. Kurtzman, which has led to inconsistent and sometimes hostile applications of the Establishment Clause. Justice Gorsuch mused, “Is it time for this Court to thank Lemon for its services and send it on its way?”

Taken together, these are auspicious signs. President Trump’s nominees seem to read the Constitution in the manner he described in his executive order: as “enshrin[ing] and protect[ing] the fundamental right to religious liberty as Americans’ first freedom.”

Sessions’s guidance on religious freedom is a long way from being institutionalized throughout the cabinet, however. There remain certain pockets of resistance to the chief executive’s outlook. The Postmaster, for example, appears stubbornly committed to a postal regulation that makes the printing of religious images on custom postage unlawful.

Other concerns are more substantial. The Department of Housing and Urban Development has several outstanding investigations concerning religious discrimination in fair housing, but it has been slow in arriving at a simple resolution. And virtually nothing has been done to improve religious freedom in the military since President Obama left office, leading some to conclude that the Pentagon needs its own executive order on religious liberty. Jerry Scott Squires, a Southern Baptist army chaplain and First Liberty Institute client, when asked to host a marriage retreat for a same-sex couple, followed the rules of his denomination by removing himself from the retreat and arranging for another chaplain to take his place. Chaplain Squires faced the prospect of a court martial for following the rules of both his endorser and the U.S. Army. (The charges were subsequently dropped.)

Fortunately, we no longer need worry about the threats to religious freedom under a possible Hillary Clinton presidency. Whether it has meant reorienting the administrative state to laws properly passed by Congress, making policy adjustments, championing legislative initiatives, putting forward judicial nominees, correcting litigation priorities, or making personnel choices to expand the religious liberty of the people while decreasing the administrative threat, President Trump’s administration has distinguished itself by a commitment to religious freedom in both word and deed.

Jeremy Dys is Deputy General Counsel for First Liberty Institute.