Religious liberty under Trump

President Trump was and is certainly a controversial figure in the USA and across the world. However, what cannot be denied is his promotion of religious liberty. Whatever Trump’s personal religious convictions might be (he grew up in liberal Presbyterianism under the ministry of Norman Vincent Peale, and has among his spiritual advisors prosperity-preacher charlatans such as Paula White), politically he favoured a robust defense of the U.S. Constitution’s First Amendment.

One of his most significant Executive Orders was EO 13798, titled, “Promoting Free Speech and Religious Liberty.” In that order, signed on May 4, 2017, President Trump directed federal agencies “to vigorously enforce Federal law’s robust protections for religious freedom,” stating that “all executive departments and agencies shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.”

In response to EO 13798, then U.S. Attorney General (AG), Jeff Sessions, issued a “Memorandum for all Executive Departments and Agencies” on October 6, 2017. Former AG Sessions writes, “Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law,” elaborating on that fundamental principle in twenty subsections. For example, “the free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs”; “the freedom of religion extends to persons and organizations”; “Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with the government”; “government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws”; “government may not officially favor or disfavor particular religious groups”; and “government may not interfere with the autonomy of a religious organization.” Sessions explains, “In general, a government action that bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice, will qualify as a substantial burden on the exercise of religion,” which, according to the memorandum, should be avoided. In addition, Sessions writes, “Once a religious adherent has identified a substantial burden on his or her religious belief, the federal government can impose that burden on the adherent only if it is the least restrictive means of achieving a compelling governmental interest.”

Those principles were applied during Trump’s presidential term. For example, the Trump Justice Department filed amicus briefs in defense of individuals and organizations. One example is Jack Philips, a Coloradan baker whom the authorities attempted to compel to make a cake celebrating a same-sex union. The “Little Sisters of the Poor,” a Roman Catholic religious order, also benefited from EO 13798, for the U.S. Department of Health and Human Services (HHS) issued a rule on October 6, 2017, to grant religious exemptions to religious non-profit organizations and not only to churches. The Sisters were being sued under the Affordable Care Act, passed under the Obama administration in 2010, which required them (as employers) to provide health insurance that paid for contraception, which (as Roman Catholic nuns) violated their conscience. The Sisters faced a penalty of millions of dollars for non-compliance. When the case was finally settled at the U.S. Supreme Court on July 8, 2020, the Court decided that the HHS did have the authority to grant religious and moral exemptions, something that the State of Pennsylvania had vehemently opposed. In short, under Obama nuns were sued for not providing contraceptives to their employees, who are also nuns, while under Trump religious exemptions were made and applied.


A secular vision for Biden-Harris?

But what will a new administration—a Biden-Harris administration—do? Joe Biden is a Roman Catholic, while Kamala Harris is a member of the Third BaptistChurch of San Francisco (where Amos C. Brown, a liberal, civil rights and LGBTQ rights activist, has been the pastor since 1976). The issue, however, is not the personal religious convictions of politicians but their policy agendas. Neither Biden nor Harris have shown in the past any amendment of their liberal, legislative priorities because of religious scruples. Biden, for example, is personally pro-life, but aggressively proabortion and pro-LGBTQ rights in his politics. Harris seems aggressively proabortion and pro-LGBTQ rights both personally and politically.

One document, “Secular Democrats of America: Restoring Constitutional Secularism and Patriotic Pluralism in the White House,” presented to the Biden-Harris Transition Team by the Congressional Free Thought Caucus, gives us a possible clue as to their legislative stance. That document seeks a repeal of EO 13798, the dismantling of the DOJ Religious Liberty Task Force and the HHS Conscience and Religious Freedom Division (enacted under Trump), and the rescinding and replacing of the aforementioned DOJ memorandum, which, it is claimed, permitted too many religious exemptions to individuals and organizations from federal laws and regulations.

Instead, the document envisions a different, secular, pluralist America:

It is no longer enough just to champion the rights of minorities and marginalized communities or to promote inclusion and equality. We urge you to champion America’s original constitutional secularism and the separation of church and state as core governing principles that protect religious freedom for people of all faiths—and none at all. We implore you to help educate the American public by reasonably defining what religious freedom really means: that every American has a right to practice his or her religion without interference, but no religious group can impose religious dogma or orthodoxy on other citizens and other faiths and belief systems.

Perhaps that sounds good and reasonable in theory, but what does it mean in practice? First, the document opposes religious exemptions. Bills passed by the Congress should, write the Secular Democrats, “[demonstrate] clearly the compelling government interest involved, and the damage to that interest that will occur if exemptions are granted.” In other words, bills should be litigation-proof so that religious people cannot claim exemptions from them. In keeping with this, former AG Sessions’ memorandum should be replaced with “a memorandum instructing all executive agencies to interpret religious freedom in such a way that protects the separation of religion and government, prohibits discrimination on the basis of religion, and prohibits government funding of explicitly religious activities.” No longer should religious groups get the “benefit of the doubt.” For example, the Secular Democrats urge “the [appointment of] an attorney general to the Department of Justice who will support governors whose emergency declarations and/ or executive orders require even handed universal restrictions on indoor gatherings, including at houses of worship, to help prevent the spread of COVID-19.”

Second, the document opposes the granting of funding to supposedly discriminatory organizations:

Taxpayer dollars should not be funnelled either to contractors or grantees that discriminate on the basis of religion, or to programs that promote a sectarian agenda, such as private religious schools, crisis pregnancy centers, and abstinence-only sex education…. The federal government should not do business with organizations or contractors that will use government funds to advance a sectarian agenda or discriminate against its employees or program beneficiaries on the basis of religion. If performing the duties of a government contract comes into conflict with the requesting grantee or contractor’s sincerely held religious beliefs, it can and should seek funding elsewhere.

When federal funding is made available to community or faith-based organizations to provide healthcare, that funding should go to organizations that will provide the services required, not organizations that will deliberately choose not to provide the full spectrum of services intended by the program and that will not serve all program beneficiaries equally.

Reverse all executive orders, rules, memoranda, and other actions that exempt faith-based organizations contracting with the federal government from nondiscrimination requirements that apply to secular organizations, including employment discrimination.

Third, if federal funding is given to private religious entities, they must comply with the ethos of the (secular) federal government:

Any private schools receiving taxpayer funding, whether directly or indirectly, should be held to the same non-discrimination and accommodation requirements of public schools and expected to meet curriculum standards for secular subjects, including science and history…. If receiving government funds, religious schools should be required to teach curricula in accordance with national secular standards, particularly in areas such as the teaching of science.

An example of proposed legislation is HR 3114, “The Every Child Deserves a Family Act,” which would prohibit any child welfare agency receiving federal funding from discriminating against any potential foster or adoptive family on the basis of religion, sex, sexual orientation, gender identity, or marital status. In other words, the federal government should aggressively enforce the rights of same-sex couples to adopt children, even if a religious group objects on religious and moral grounds.

Fourth, the Secular Democrats take aim at the Religious Freedom Restoration Act (RFRA), signed into law by President Bill Clinton in 1993:

While RFRA was intended as a shield for religious practice, it has become a sword to impose religious based prejudice. It has moved from permitting an individual to smoke peyote as part of a religious ceremony, to permitting a corporation with annual revenues in excess of half a billion dollars to deny female employees access to insurance that includes contraception. RFRA fundamentally privileges putatively “religious” actions over nonreligious ones.

The reference is to Hobby Lobby, a business owned by Christians, which successfully sued the federal government to gain an exemption from providing abortifacient drugs in its health insurance plans. “While the rights of Americans to worship freely is protected, religion [should not be] treated as a license for corporations to burden the rights and lives of innocent third parties,” argue the Secular Democrats. They ask the incoming administration to work for the appeal of RFRA or, if not feasible, the passage of HR 1450, “The Do No Harm Act,” which would make it more difficult for a religious group to claim exemption from certain “non-discrimination” standards, such as employment, provision of goods and services, and the like.

Fifth, the document pushes for a more “inclusive” America: “[protect students from public] school-sponsored proselytizing,” “[teach an] accurate, evidence- based, secular curriculum rather than creationism in the schools;” “ensure that humanist and non-theist chaplains serve in each branch of the military;” practice a “judicious use of symbolism [in which the president and his administration] strive to lift up the values of pluralism and inclusion;” avoid the motto, “in God we trust,” in favor of the more inclusive E Pluribus Unum; and “[work] with Congress and Governors to advance a secular agenda at all levels of government, taking into account the current makeup of the federal courts and new, unfavorable precedents that [the new] administration will have to contend with,” for the Secular Democrats recognize that Trump has transformed the federal judiciary in favor of constitutional conservatism.

In summary, it should come as no surprise that an influential section of the U.S. political class is hostile to religion. Even those who are religious, with a “private religious faith and a public constitutional faith,” as the Secular Democrats put it, make little effort to allow their faith and moral values to inform their legislative agenda. What secular humanists view as compassion, fair treatment, and even virtue (such as evolutionism, same-sex relationships, transgenderism, abortion, and the like), we Christians view as the promotion of wickedness. Inevitably, then, there will be a clash of worldviews. We must expect our Christian faith increasingly to clash with “the powers that be,” as the Antichristian kingdom draws nigh. That, too, should quicken our hope in the coming of Jesus Christ, our perfectly righteous King.