Will Trump Get Past the Easy Religious Liberty Questions to the Hard One? (Forbes.com) February 15, 2017Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
President Donald Trump recently announced in his own colorful way that he would “destroy” the Johnson Amendment, a 1954 amendment to the tax code that prohibits churches and other nonprofits from endorsing or opposing political candidates. This appeared to be a gift from President Trump to the evangelical Christian community that ultimately supported his candidacy. Shortly afterward, bills were introduced in both the House and the Senate to carry out the repeal.
Although this would be appreciated by some in the religious communities, endorsing candidates is not really the hot public policy issue in the evangelical world, nor is it clear parishioners would even appreciate hearing such political endorsements from their pulpits. Oh occasionally you see something crazy, like the mayor of Houston who, in 2014, started to subpoena ministers’ sermons to see if they were opposing the city’s new Houston Equal Rights Ordinance the mayor had championed, leaving churches to wonder if their tax-exempt status was at risk. But after a huge hue and cry erupted over her chilling religious rights under the First Amendment, the mayor backed down.
No, the pressing issue for evangelicals is the rapidly developing clash between the equal protection clause of the Fourteenth Amendment and the First Amendment right to free exercise of religion. It reared its head in the Obergefell v. Hodges (2015) gay marriage case when U.S. Supreme Court Justice Anthony Kennedy, writing for the majority, said that religious groups could “continue to advocate” and “teach” their views on marriage, but came short of saying they were free to “exercise” their views about marriage, which is the language of the First Amendment, if they came in conflict with the civil rights the Court affirmed for gay marriage.
The justices who dissented in the 5-4 case pointed out this looming conflict between the civil rights increasingly extended by court interpretations of the equal protection clause of the Fourteenth Amendment and the First Amendment right to “free exercise” of religion. Chief Justice Roberts acknowledged that the decision “creates serious questions about religious liberty” while offering “people of faith…no comfort.” Justice Clarence Thomas was even more direct: “The majority’s decision threatens the religious liberty our Nation has long sought to protect.” Expressing concern about Kennedy’s slight nod to religious groups’ ability to teach their values, Thomas said “religious liberty is about freedom of action in matters of religion.”
The same underlying issue—the clash between equal protection and free exercise of religion—was raised a few months ago in a report of the U.S. Commission on Civil Rights. Lawyers and commissioners wrestled over this for three years, finally concluding that religious exemptions from civil rights protections “when they are permissible, significantly infringe upon these civil rights.” All that basically tell us is that it’s a problem, a conflict that one commissioner, Peter Kirsanow, called “profound” noting that “the passions involved may be fiercer than in any civil rights since the 1960s.”
What seems to be developing is a very constrained view of exercising one’s religious liberty. It’s ok as long as you confine it to the worship hour in the church house, but don’t try to exercise it in the work place or the larger world the rest of the week. If you’re a religious college that doesn’t believe in gay marriage, good luck when a gay couple wants to live in your married housing, or when a Christian baker feels a constraint of religious conscience decorating a wedding cake for a gay marriage.
Ultimately, there are only a few ways presidents can address a tough dilemma likes this. One would be to issue an executive order, or propose legislation, beefing up religious exemptions to civil rights laws. Another would be to nominate judges, such as Neil Gorsuch, who have a record of supporting religious liberty. Appointing new commissioners of federal agencies, such as the Civil Rights Commission, could also make a difference.
President Trump’s willingness to address the growing conflict between civil rights under the Fourteenth Amendment and free exercise of religion under the First Amendment, will be his big test on religious liberty. Indeed it’s a huge and important test for our country as a whole.
To view the column at Forbes.com–