The Religious-Liberty Showdowns Coming in 2017

The Atlantic
Updated

Religious voters won Donald Trump the White House. Exit polls show that 81 percent of white evangelicals and 60 percent of white Catholics chose the president-elect over Hillary Clinton. Trump voters were also more likely than Clinton voters to say they attend religious services weekly or monthly. While these Americans likely had many different reasons for supporting Trump, James Dobson, the founder of Focus on the Family, said “the number one issue” for evangelical pastors who met with Trump this summer “was religious liberty—more than anything else,” according to a transcript of the meeting. “All the other issues relate to that one. … We’re losing our religious liberty,” he said.

But other Americans—especially those who are not white, conservative, and Christian—have a different set of concerns about religious liberty. Minority groups, including Muslims and Jews, have expressed fears about the rising discrimination, violence, and hate speech directed toward them. Many have argued that Trump’s rhetoric on the campaign trail has enabled this vitriol, evidenced by the post-election uptick in swastikas painted in public places and self-described Trump voters’ aggression toward minority groups. Others, including people who are lesbian, gay, bisexual, and transgender, argue that conservative Christians’ efforts to win greater liberty is really a way of undermining their rights.

Starting early in 2017, Trump’s administration—backed by a Republican-controlled Congress—will take up pending religious-liberty questions in all three branches of government. Every issue will come saddled with this fundamental conflict: Some groups’ claims to religious liberty may necessarily involve curtailing the rights of others. State legislatures are likely to continue facing religion-related issues, including bills on LGBT rights, abortion restrictions, and religious-conscience exemptions. At the federal level, much will depend on who’s appointed, and even basic changes will take time.

“There’s no such thing as a magic solution that a new administration can put into place to resolve all religious-freedom issues,” said Kristina Arriaga, the executive director of the Becket Fund for Religious Liberty, a law firm that litigates cases related to religious freedom.

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No matter what happens, it seems clear that the conflict over religious liberty and discrimination will be the basis of some of the biggest fights and policy shifts over the next two years. What’s also clear is that religious liberty will not just be an issue for the white, conservative Christians who voted Trump into office. While it’s impossible to list comprehensively every religious-freedom question pending at the state and federal levels, here’s a look at some of the biggest potential areas for conflict and change.

Among minority religious groups, and specifically Muslims, many worry that Trump’s administration will increase the already existing limits on their religious practice. “On the campaign trail, we heard now-President-elect Trump call for things like a national registry of Muslims and a ban on Muslims entering the U.S.,” said Farhana Khera, the president and executive director of Muslim Advocates, a legal organization focused on protecting Muslims’ civil rights. And “post-election, we’ve seen some troubling implications of the types of ideas and people he is surrounding himself with.”

She cited New York Representative Peter King, who apparently urged Trump in a meeting to implement a federal surveillance program focused on mosques, similar to the NYPD’s recently shuttered initiative. She also mentioned Kansas Secretary of State Kris Kobach, who carried a memo into a meeting with Trump proposing a total ban on Syrian refugees, the renewal of a formerly existing tracking system for Muslims coming into the United States, and a slate of questions for “high-risk aliens,” including whether they believe in Sharia law.

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While courts have ruled that efforts like NYPD’s surveillance program were illegal, “there’s potentially a specter, at the federal level, of the government attempting to replicate what the NYPD was doing,” said Khera.

While Supreme Court appointments may be the flashiest way of shaping the judicial system, “there are almost 100 judicial seats waiting to be filled.”

The courts will be a huge determining factor for religious-liberty issues in 2017. When he takes office, Trump will be in the unusual position of immediately getting to name a Supreme Court justice to replace Antonin Scalia, who died in February of 2016. The president-elect may well get to appoint additional justices within the next four years: By Election Day in 2020, Ruth Bader Ginsburg would be 87 years old, Anthony Kennedy would be 84, and Stephen Breyer would be 82.

This was almost certainly part of Trump’s appeal. “If you look at … those who voted for President-elect Trump, whether it’s evangelicals or Catholics, the number-one issue by far was the Supreme Court,” said Kelly Shackelford, the president and CEO of First Liberty Institute, a Texas firm that litigates religious-liberty issues. While this is hard to verify, surveys have suggested religious liberty is among the topics clergy discuss most at worship services. Election exit polls also suggest the Supreme Court was the top issue for a majority of Trump supporters.

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While Supreme Court appointments may be the flashiest way of shaping the judicial system, “there are almost 100 judicial seats waiting to be filled by the president, [including] courts of appeal and district courts,” Shackelford said. “Those have a huge impact on religious-liberty and constitutional issues.”

Judge appointments—made by the president and confirmed by the U.S. Senate—are one direct way Trump could influence the many controversial, religion-related cases currently wending their way through the court system. A number of pending suits deal with fallout from the Affordable Care Act, for example, including its requirements related birth-control coverage and treatment of LGBT patients. Lower-court judges, including Trump appointees, will continue playing a big role in how these conflicts are resolved.

Trump will also have the chance to influence these legal fights through executive orders and appointments. Some of President Obama’s boldest moves on religion-related issues happened through executive action: In 2014, for example, the administration ruled that federal contractors cannot discriminate in hiring based on sexual orientation and gender identity, which some religious groups decried. Various departments also interpreted the Civil Rights Act of 1964 and the Education Amendments Act of 1972 to argue that federal law protects LGBT Americans from discrimination—most prominently, the Departments of Justice and Education sent a letter to school districts around the country asserting these rights for transgender students. This interpretation is contested, though, and some religious groups have raised concerns about its potential consequences.

“One of the things the president could do is say, ‘I’m in charge of Health and Human Services, and these lawsuits are over.’”

In some cases, these regulations have “circumvented the normal legislative process,” Arriaga said—she and others argue that the Obama administration failed to go through a formal rule-making process on a number of initiatives that affected religious groups. Other rules—like the religious exemption to the Affordable Care Act’s birth-control mandate—went through laborious processes that left both religious groups and the government dissatisfied and led to a series of onerous lawsuits. “One of the things the president could do is say, ‘I’m in charge of Health and Human Services, and these lawsuits are over,’” said Shackelford. “That’s an example of a clear, simple, immediate executive action that has a pretty large effect on religious freedom in real life.”

When new appointees take control of the executive branch, they could choose to reverse or revise number of these interpretations, and they will also be able to choose how strenuously they enforce the current rules. But Trump, and Republicans more broadly, will also have a short window of opportunity before the 2018 mid-term elections to make their preferred policies more permanent: “We’re hoping that the changes will take place in Congress, because we think that will be a much safer process than through an executive order,” Arriaga said. This is true in part because congressional actions can’t simply be reversed by the next administration.

Congress has already started looking at religious-liberty-related bills for 2017—many specifically focused on creating religious exemptions to current laws. “We see these questions of religious exemptions … as a Plan B to … resist advances in the name of equality,” said Louise Melling, the deputy legal director at the American Civil Liberties Union, which has opposed a number of these exemption bills at the state and federal levels. “Plan A is to block the change—as in, block … [the] recognition of same-sex marriage, block … rules to bar discrimination based on LGBT status, block advances in terms of women’s and transgender people’s access to abortion services. When Plan A fails, Plan B comes into gear.”

At the federal level, bids for religious exemptions have emerged in a few different contexts. One is through amendments: Early in December, Congress passed the National Defense Authorization Act after months of debate largely centering on one religious-exemption clause. The so-called Russell amendment—named after Representative Steve Russell, the Oklahoma Republican who submitted it—would have exempted religious defense contractors from following Obama’s executive order on LGBT discrimination. Although the measure failed this year, it may come back in future sessions.

“It will matter that the efforts to roll back [these rights] are resisted.”

Congress is also likely to reconsider the First Amendment Defense Act, legislation which would bar the federal government from withholding, reducing, or terminating grants and employment to people who believe that sex should be limited to the context of marriage, and marriage should be limited to unions between one man and one woman.

Finally, on the campaign trail, Trump promised to repeal the Johnson Amendment, a 1954 provision that bars tax-exempt organizations—including religious groups—from participating in political activities. All of these proposals, which will likely be joined by others, largely focus on addressing the concerns of conservative Christians. But the looming question is what Congress will do to protect the rights of groups like Sikhs and Muslims, who face intense discrimination. “A big danger for religious liberty will be that the Republicans, in the euphoria of their win, will be tempted to not defend religious freedom for all,” said Arriaga.

At the state and local levels, the range of potential religious-liberty legislation—and conflicts—is expansive. While many states already have laws or constitutional provisions modeled on the federal Religious Freedom Restoration Act, some states—including Indiana, led by then-Governor and now-Vice President-elect Mike Pence—have tried to put stronger measures in place over the last couple of years. The ACLU is gearing up to oppose these measures, bolstering their long-standing public-information campaign with training sessions for journalists. And Muslim Advocates is particularly focused on protecting the rights of communities to build worship spaces, efforts which have often been complicated by local zoning boards.

At all levels of government, legal advocates worry that religious-freedom initiatives will come at the cost of other groups’ protections. In the past half decade, a number of states have proposed so-called anti-Sharia bills, barring judges from considering Sharia law in their decisions, for example. “There’s a phony, phantom argument, when they talk about Islam as a threat and sharia as a threat,” said Khera. “They try to cook up the idea that by allowing Muslims to practice their faith, that’s a threat to them.” The ACLU has also argued that conscience exemptions for Christians who oppose same-sex marriage threaten the rights of lesbian, gay, bisexual, and transgender people. “It will matter that the efforts to roll back [these rights] are resisted,” said Melling. “It will matter that the changes in norms are fought, that people tell the story of why this matters. It matters even if we lose in Congress, or even if we lose at the regulatory level.”

“We’re entering this new era in which the religious intolerance and bigotry is at some of its worst.”

In general, the ACLU seems to be moving into a defensive posture. “We’ll certainly be watching at every stage,” Melling said, and “taking action to explain why the move is bad, to explain why it’s harmful, to resist the change, and then to assess … opportunities we have to litigate.” Khera is also anticipating fights ahead: “We’re entering this new era in which the religious intolerance and bigotry is at some of its worst, certainly that we’ve seen in modern U.S. history,” she said. “I think it’s hard for us to exactly forecast what crazy, anti-Democratic proposal some people are going to come up with.”

By contrast, Shackelford sees these potential changes as opportunities: All of these “examples are 1000 points of light,” he said. Under Obama, for example, religious groups that refused to hire LGBT people based on their sexuality or gender identity were banned from winning government contracts—something Shackelford would like to see reversed. “They’re told that … as a faith-based group, [they] cannot participate in the same way if [they] don’t have certain beliefs,” he said. “That, hopefully, will change.”

At this point, though, even the enthusiasm is tentative. “We’ll continue to defend our principled position, no matter who is in the White House—we will defend religious liberty, A to Z, Anglicans to Zoroastrians,” said Arriaga. “We are a law firm. We are sitting here patiently, waiting to see what happens.”

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This article was originally published on The Atlantic.