Trump’s Religious Liberty Order Preserves An Unequal Legal Climate

Trump’s Religious Liberty Order Preserves An Unequal Legal Climate

The religious liberty of people of faith and the rights of LGBT individuals can be protected at the same time. There is no reason protection cannot accommodate all Americans equally.

In 2014, President Barack Obama failed to seize an opportunity to promote true equality when he issued an executive order requiring businesses contracting with the federal government to adopt sexual orientation and gender identity preferences. He had been urged by religious liberty scholars and others to include religious liberty protections consistent with other civil rights laws, but failed to do so.

That failed opportunity has led to recent calls for a new executive order with broad protections for people of faith. The new administration has indicated that the LGBT discrimination order will not be rescinded, and it now appears a new religious liberty order will not be forthcoming.

Instead, the president has issued an order that scolds the IRS about challenging the tax-exempt status of non-profits, including churches, if they speak out on political issues. This order, however, doesn’t address the core religious liberty concerns of people of faith. The president should show bold leadership by issuing an order that both protects religious liberty and points the way toward a real solution to the very real problem of heightened religious liberty conflicts.

This solution is grounded in the principle that the religious liberty of churches, people of faith, and other faith groups and the rights of LGBT individuals can be protected at the same time. There is no reason that protection cannot be extended to all Americans in a spirit of equal accommodation.

Trump Hasn’t Fulfilled His Promises Yet

This renewal of American equality can be accomplished with a new executive order, or an amendment to the previous one, that allows faith-based service providers to reflect their religious missions in their employment policies and provides equivalent protections for religious freedom to those currently provided for LGBT workers, without rescinding the protections based on sexual orientation and gender identity. This order would establish a better approach both in policy and politics than the zero-sum approaches that have typically characterized lawmaking in this area.

In addition to providing balanced protections, this would provide a precedent for needed congressional action on religious freedom. Although federal law provides important protections, in the form of principles for courts to follow in assessing religious liberty claims, what is needed are specific legal rules that ensure churches, faith groups, and individuals of faith can live out their religious commitments without unnecessary interference by government.

This approach would not only protect against direct limits on religious liberty in the form of government penalties, but would also curb indirect limitations created by the potential costs of litigation, even if that litigation would be ultimately successful under current law.

Courts Need Clear Guidance

Importantly, under our current law, religious protections must be extended by court interpretations, which can be mixed. If Congress enacted more specific exemptions, it would provide more consistent results for those seeking protections, results not dependent on the sympathies of the judges who assess their claims.

Congressional action could mean courts would not feel the need or be tempted to make new laws as they sometimes do now. Currently, federal courts are being asked to rewrite our national discrimination laws. At least one appeals court has accepted that invitation, holding that when Congress used the term “sex” in the 1964 Civil Rights Act, it included sexual orientation. (Or, as one of the judges who supported the result more candidly put it, the courts should update what Congress did then.) Of course, in making this ruling, the court did nothing to ameliorate the religious liberty implications of such a decision. Such unbalanced, one-sided decisions are typical when judges take on the role of legislator.

Legislative action allows for both accountable decision-making that ensures balanced and equal consideration of claims that might seem to be in competition, and a policy of accommodation that treats diverse groups evenhandedly. The president ought to take an opportunity the previous administration missed, and use executive action to restore equality and plant the seeds of a real, long-term solution.

William C. Duncan is director of Sutherland Institute’s Center for Family and Society and also serves as the director for the Marriage Law Foundation. He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he also served as a visiting professor. Bill has submitted briefs on constitutional and family issues in the U.S. Supreme Court, 10 federal courts of appeals, eight state supreme courts, and other venues. He has presented expert testimony in the legislatures of seven states. His 75 scholarly articles have been published in the Rutgers Law Review, Howard Law Journal, Journal of Legislation, Harvard Journal of Law and Public Policy, Stanford Law and Policy Review and other journals. He has also published in National Review Online, SCOTUS Blog, and the American Spectator. Follow Sutherland Institute on Twitter @SutherlandInst.
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