The President of the United States chose to roll out his long-awaited and controversial religious freedom Executive Order on the National Day of Prayer, earlier this month. Speaking before an audience of religious leaders in the Rose Garden, Trump declared, “Freedom is not a gift from government, freedom is a gift from God.” He continued, “We will not allow people of faith to be targeted, bullied or silenced again and we will never stand for religious discrimination.”
Earlier this year, after an apparent draft of the order was leaked to the press, LGBT groups and the liberal media went quite ballistic, declaring that Trump was providing cover for religious citizens to discriminate against gay and transgendered Americans. For their part, conservatives were emboldened by the leaked language, hoping that Trump would do more to protect religious citizens and groups from the existential threat of “sexual liberty” (i.e. the bakers, florists, photographers, etc.). But did the text of the order stand up to all the hype? Not exactly.
The Executive Order instructs the executive branch agencies to:
- vigorously enforce federal protections for religious speech and religious freedom;
- not penalize the political speech of religious organizations and churches (i.e. not enforce the Johnson Amendment);
- amend HHS regulations to strengthen conscience protection objections to abortion and abortifacients (Little Sisters of the Poor);
- have the Attorney General issue guidance regarding the religious liberty protections of federal law.
Gone from the text were any provisions protecting sincere religious conscientious objectors from the myriad of charges of “hate” and “discrimination” simply because they choose to live according to Biblical sexual ethics and the dictates of their conscience. Some critics believe these sections were removed at the insistence of Jared Kushner and Ivanka, who were allegedly concerned that protecting religious freedom in this context was too anti-LGBT.
What does this all mean? As a constitutional attorney, I am very encouraged that President Trump wants to remove some of the pressures President Obama applied to those objecting to abortion for religious reasons, and that he will not enforce the Johnson Amendment, which I believe is unconstitutional and has been employed to muzzle pastors’ religious speech. But the Johnson Amendment is still on the books and wasn’t being enforced anyhow.
Thus, it is important to understand what an executive order actually is. An executive order does not have the force of law of the U.S. Constitution or a U.S. statute. An executive order expresses the preferences of the current inhabitant of the Oval Office. While it is encouraging that Trump favors religious freedom, the next president, may promptly undo whatever Trump has done here with the flourish of his pen.
Granted, President Trump wimped out, side-stepping for now dealing with the threat that “sexual liberty” poses to religious liberty. However, after eight years of being hammered by the Obama Administration, conservatives should be encouraged by Trump’s very un-Obama-like support of religious freedom.
We should not lose hope or heart. We must realize that the protection and advancement of religious freedom does not come from executive orders—it lies in the hard, slow work of re-establishing an originalist understanding of the First Amendment, rediscovering a genuine tolerance and respect for religious liberty, and more permanent legislative protections like the Religious Freedom Restoration Act (RFRA). And ultimately, our liberty is God-given, both now in the freedoms we still enjoy and when He makes all things new.
— by Dean R. Broyles, Esq.
Broyles is a constitutional attorney serving as the President of The National Center For Law & Policy (NCLP), an organization fighting to promote and defend religious freedom. Copyright© The National Center For Law & Policy. Reprinted with permission.