By John Garvey
The media, and we who listen to them, were surprised at the election results. I have a feeling it’s not the last surprise we are in for.
The campaign was more about character flaws than about policy, and as a result, we don’t know much about how President-elect Donald Trump intends to govern. In my own corner of the room, I find myself wondering about the future of religious liberty.
The Supreme Court used to give more protection to that right than it does today. In 1990, it announced its intention to get less involved. Active judicial oversight is unnecessary, the court said, because we can trust the legislature to share our values, including the value we assign to religious belief. Congress soon validated the court’s faith by passing the Religious Freedom Restoration Act.
What the court did not reckon with was the new fondness for governing from the executive branch. The outgoing administration has had a distressing tendency to ignore Congress and make its own rules by executive order or administrative action. But we do not elect cabinet secretaries and commission heads, so there is no assurance that they will think the way we do about matters of faith.
Consider a few examples. The National Labor Relations Board has announced, notwithstanding contrary precedents in the courts of appeals, that it can oversee the terms and conditions of employment for teachers at religious universities. The Department of Health and Human Services has ordered the Little Sisters of the Poor to help give contraceptives and abortifacients to their employees. The Equal Employment Opportunity Commission has decided that Title VII forbids discrimination on the basis of sexual orientation.
I could go on, but you get the idea. If the court has withdrawn from the field, and we are governed by people we don’t elect, religious freedom is at risk.
I wish I could say that President-elect Trump won’t govern without consulting Congress, as President Obama has done. But Republicans are subject to the same temptation as Democrats. Given the nature of the coalition that elected him, I do think that the president-elect and his agencies will be more attentive to the concerns of evangelicals, Catholics and other traditionally minded people of faith.
And he has promised to sign the First Amendment Defense Act if Congress can pass it. The First Amendment Defense Act protects people who believe in traditional marriage against discrimination by the government.
So I think that in the near term religion has less to fear from executive orders and agency action. The thing is, I don’t think we can rely much longer on the assumption that our elected representatives will share our faith commitments.
In 1993, the Religious Freedom Restoration Act passed the House unanimously and the Senate 97-3. In 2014, Democrats in Congress called for its amendment after the Supreme Court enforced it regarding Hobby Lobby. In 2015, Indiana was convulsed by an effort to pass a state Religious Freedom Restoration Act. Opponents said it would shield discrimination on the basis of sexual orientation.
In 2016, religion functioned like the totem of a political faction, not a commitment shared by the electorate and their chosen candidates. President-elect Trump himself was distressingly frank about the limits of his own ecumenism — remember his quarrel with Pope Francis and his hints about surveillance of Muslims. Majorities of evangelicals and Catholics supported Trump not because he shared their values on life, family and faith, but because he promised to protect them.
This is why I worry about the long term. It is no longer a given that our faith is shared widely enough that we can count on a properly functioning democracy to protect it.
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