Good News on Domestic Religious Liberty

Conflict between religious liberty and the sexual revolution has surely been among the greatest issues facing our nation in the last decade, and continues to be.

The Trump Administration, which was elected partly because of the conflict, is deeply involved in it. The issue was discussed by a three man panel of Trump Administration officials at the Heritage Foundation on October 8. Eric Dreiband, Assistant Attorney General for Civil Rights, Roger Severino, Director of the Office of Civil Rights, and Reed Rubinstein, Acting General Counsel of the U.S. Department of Education provided their perspectives.

John Malcolm, Vice President of the Institute for Constitutional Government at the Heritage Foundation, began the panel by saying that “on September 23, President Trump delivered an important speech on religious freedom at the United Nations. He said ‘our founders understood that no right is more fundamental to a peaceful, prosperous, and virtuous society than the right to follow one’s religious convictions.’

Malcolm added that ‘too often people in positions of power preach diversity, while silencing, shunning, or censoring the faithful. True tolerance means respecting the right of all people to express their deeply held religious beliefs.” Malcolm noted that “during the previous administration, religious adherents felt somewhat besieged.” It appeared ready to respect freedom of worship, but not freedom of religion. But the Trump Administration has adopted a radically different policy.

Dreiband said the Administration’s efforts with on religious freedom began with President Trump’s executive order in May 2017. Important in this approach to religious freedom is “the idea of equal treatment.” It says that religious individuals and organizations should not be treated less favorably than others. They should not “face legal disabilities because they are religious in nature.”

The Trinity Lutheran case, decided by the Supreme Court in 2017, is one such situation, where a church was denied a government award simply because it was a religious organization. Included importantly in religious freedom, the Dreiband said, is that the state should not pressure religious organizations “to abandon their religious faith in order to obtain or somehow be eligible for some kind of government benefit.” Similarly there should be “equal treatment for religious individuals and institutions.”

Dreiband said the Administration believes that this policy “will reduce strife in our society.” Additionally, the Administration supports a doctrine of “church autonomy,” which says that “religious organizations may run their own affairs as they deem appropriate.” This is in line with the Hosanna Tabor decision in 2012, in which the Supreme Court said the religious organizations may choose their own religious teachers independent of state control, and in particular, independent of antidiscrimination law and policy.

According to Dreiband, the administration is also holding, in Trump vs. the Commonwealth of Pennsylvania, that the Religious Freedom Restoration Act of 1993 protects the religious conscience against the Obama Administration’s contraceptive mandate. The administration has also “doubled the number of investigations that we are bringing” under the Religious Land Use and Institutionalized Persons Act (RLUIPA) which prohibits burdening the land use of religious institutions by zoning regulations.

Rubinstein said “the Trump Administration has done great things – our department has done great things – to advance liberty, religious and otherwise.” He said the Administration is “doing what it can” to keep the administrative state within its statutory boundaries.

These steps by the Department of Education are “technical steps, but critical steps” in support of religious liberty, Rubinstein said. Student aid, for instance, has been reviewed to determine how it might affect free exercise rights. The “religious mission” of schools “must be taken into account” in student aid policy. Accreditation must not be adversely affected by an organization’s belief in traditional marriage and the natural family.

Severino referred to John Lennon’s song “Imagine,” and its claim that in a better world there would be “nothing to kill or die for,” and “no religion too.” Severino said Lennon forgot that people have to have something to live as well as die for. He asked if America would be “a better place” with no religion. It would certainly be a nation different from that which the founders envisioned. They imagined that religion would make the nation more virtuous.

In John Lennon’s ideal world, Severino said, there would be no Little Sisters of the Poor. Their mission is to ensure that “the elderly poor do not die alone.” The Obama Administration, in imposing the contraceptive mandate on the Little Sisters, essentially told them that they could not exist if they did not provide free contraceptives to the nuns belonging to the group. Their existence was conditioned upon the Little Sister’s arranging for the group’s members to violate the group’s beliefs. Many nonreligious organizations, however, such as Exxon and Pepsi, were exempt from the mandate because they were “grandfathered in.”

Severino said that in dealing with “issues of life and death … the religious impulse really comes to the fore.” Although people like John Lennon may think it desirable, “you cannot get rid of the religious impulse, its part of human nature.” America has a tradition of exempting people for religious reasons from binding law, such as the Quakers from service in the Revolutionary War and doctors who will not give lethal injections in executions, or who object to participation in abortions. He noted that in many cases, conscience protections in federal law can only be enforced by the HHS’ Office of Civil Rights; private citizens cannot bring legal action.

Severino observed that the Obama Administration received a little under one complaint per year concerning federal conscience protections. Under the Trump Administration, there have been 353 in the last fiscal year. The Administration’s announcement that it was willing to enforce conscience rights was surely the reason for the difference, he believes.

Requiring a nurse in Vermont to perform an abortion and requiring crisis pregnancy centers in California to give abortion referrals were examples given of legal action from the Trump Administration. Severino said the administration wants to create a culture in which it will be “unthinkable” not to enforce conscience regulations.

To that end, a Conscience and Religious Freedom Division has been established in the Office of Civil Rights, to make sure that legal conscience protections “are treated at least as well as every other civil right.” He said the administration has identified 25 protections in federal law pertaining to health care that the Administration is trying “to give life and force.”

This effort faces lawsuits, but this would seem to be really lawsuits seeking that the law not be enforced. But the Trump Administration has shown initiative and determination in pursuing liberty of conscience. Severino said that he can “imagine a world in the future that’s very different than that of John Lennon’s.”

Malcolm noted the “significant headwinds” that the administration faces on religious freedom, including “the media, a lot of corporate America … even the language changes.” Consciences protections may be initially enacted as “compromises or accommodations among people who have reasonable beliefs on both sides of the debate” but become “tomorrow’s loophole that has to be closed because there are bigots that are preventing justice from being done.”

Since the government departments involved the administration’s effort for religious and conscience freedom retain people from previous administrations, including the Obama Administration, Malcolm asked the panelists to describe “what you tell your people.”

Severino said that in addressing religious and conscience rights we should “start with the principle of equal dignity and respect for everybody,” however this is justified, and then “do not presume the worst, but the best in their motives.” People are then more willing to pursue a reasonable course of action. He said he told his staff that no one is required to work on an issue “that violates your conscience.”

Rubinstein said his staff consists of “very conscientious and professional lawyers.” The priority of law, how to read it, and when regulations are appropriate, have not been points of contention due to “headwinds” against religious freedom. He said much of the Department of Education’s activity is “grant making.” This does not give it much leeway in furthering religious freedom other than ensuring that “the law is followed” including “all provisions of the law.” Internal reaction to this approach “has been very positive.”

Dreiband said that much of the work his office does “is not particularly controversial.” Religious land use and violent crime perpetrated by hostility to religious groups (with anti-Semitic crimes recently prominent) are non-controversial with the office’s lawyers. Where the office has taken action on controversial issues, such as same-sex marriage related cases, he said the Constitution protects religious liberty in the cases it is involved in.

A questioner asked what feedback about religious freedom policy the Administration has received since the Democrats took over the House of Representatives. Dreiband said “I haven’t heard too much from Capitol Hill.” He mentioned that in testifying before Congress, a member of Congress said the Administration “was hostile to civil rights,” to which Dreiband responded that such a statement was “inaccurate and offensive.”

Severino said that the fact that Congress has a proper role in oversight, and the fact that they have questions shows that the Administration is doing its duty in implementing a significant religious freedom policy. An ineffective policy would not be questioned.

A problem conservatives have long seen is that Republican presidents and legislators depend on their votes, but reward with the status quo (or worse). The Left of course often paints the change of policy as strictly political, not a matter of national ideals. But religious freedom is the first freedom mentioned in the Bill of Rights, and properly so, given that religious belief concerns ultimate matters. It protects “exercise,” not merely belief, and deserves to be the first concern of the Administration.