Stalled action on proposed religious freedom order raises concerns

By Carol Zimmermann

WASHINGTON (CNS) — Talk of President Donald Trump possibly signing
an executive order on religious freedom — which drew both criticism and praise —
has been replaced with discussion about what happened to it and what a final
version, if there is one, will look like.

A draft
version of the executive order, called “Establishing a Government-Wide Initiative to
Respect Religious Freedom,” had been widely criticized in late January by
those who said it would legalize discrimination and was too far-reaching. It then failed to appear on the
president’s desk while rumors circulated that a scaled-back version might
appear eventually.

“We hope
that President Trump and his administration will take action soon, especially
to provide relief from the onerous HHS mandate,” said Baltimore Archbishop William
E. Lori, chairman of the U.S. bishops’ Ad Hoc Committee for Religious Liberty,
referring to the mandate issued by the federal Department of Health and Human
Services requiring most religious employers to provide coverage of artificial
birth control for their employees even if they are morally opposed to it.

“Now that
some of the Cabinet posts are being confirmed, we hope that concrete and
immediate action is taken to protect religious freedom,” he said in a Feb. 10
email to Catholic News Service.

The archbishop
pointed out that Catholic leaders have been “asking the executive branch for
more than half a decade now for an end to the coercive HHS mandate that
requires the Little Sisters of the Poor and so many other faith-based
ministries to either violate their faith or pay millions of dollars in fines to
the federal government.”

He said
he hoped the president would end the coercion of religious employers and also would
“allow people of faith to have the freedom to serve others in all our
ministries, including our soup kitchens, schools, adoption services, homeless shelters
and refugee services.”

After a
draft version of the executive order was leaked to the public, the U.S. bishops posted
an online letter for Catholics to send to the president urging him to sign such an order.

The four-page
draft said that “Americans and their religious organizations will not be
coerced by the federal government into participating in activities that violate
their consciences.” It also noted that people and organizations do not
“forfeit their religious freedom when providing social services, education
or health care.” It cited the Religious Freedom Restoration Act, known as RFRA.

The bishops’
online letter supporting a religious freedom executive order stipulated that it
should include some of the following provisions:

Relief from the Affordable Care Act’s contraceptive mandate for religious employers who do not fit the mandate’s narrow exemption.

Preservation of tax-exempt status for nonprofit groups that hold beliefs based
on marriage and human sexuality.

— The
ability of religious organizations that partner with the federal government to
act according to their beliefs regarding marriage, human sexuality and the
protection of human life at all stages.

— The
ability of religiously affiliated child welfare providers to provide adoption,
foster or family support services for children that coincide with their
religious beliefs.

Conscience protections about abortion in the individual health insurance

Richard Garnett, University
of Notre Dame law professor, told CNS Feb. 13 that the Trump
administration might hold off on signing some form of an executive order on
religious freedom while there is so much attention on the proposed travel ban
and upcoming confirmation hearings on a Supreme Court justice.

But Garnett
said there are groups that have a real interest in the First Amendment Defense
Act that will not be happy if the Trump administration “isn’t willing to follow
through” on such an order. 

The First Amendment Defense Act, first introduced in 2015 in both the House and Senate, would provide conscience protection for any person who believes marriage is the union of one man and one woman,
preventing the federal government from discriminating against that person.

He noted that the measure is not likely to get passed by this year’s Congress, so the most likely way for a similar move to happen with federal support would be through an executive order signed by the president.

Garnett, founding director of new program at Notre Dame’s law school called “Church, State and Society,”
said the draft executive order on religious freedom was misunderstood by those
who said it would legalize discrimination. The order doesn’t legalize anything,
he noted, nor is it currently against the law for religious institutions to take religion into account when hiring for example.

point of the draft version of the order, he said, is that it would make clear
that those who are getting federal benefits such as grants or contracts, would
not lose them because of a religiously motivated position.

His take
on the draft is basically that it says the current administration supports RFRA and wants people to do their best to
comply with it.

1993 law that was highlighted in last year’s Supreme Court case with the Little
Sisters of the Poor, states that the government “shall not substantially
burden a person’s exercise of religion” unless that burden is the least
restrictive means to further a compelling governmental interest.”

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Follow Zimmermann on Twitter: @carolmaczim.

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