Written by Don Byrd
[UPDATE: For more on this topic, also see Emma Green’s “The Religious Liberty Showdowns Coming in 2017” in The Atlantic.]
For my look back at the top religious liberty stories of 2016, see this earlier post. The last week of the year is also a good occasion to look forward. What’s coming in 2017? What will I be following especially closely here at the BJC blog? Here is a quick summary of some of the issues I will be watching.
The U.S. Supreme Court: Donald Trump will likely nominate a 9th justice to the U.S. Supreme Court soon after his January inauguration as president. The vacancy has been in place nearly a year, following the death of Justice Antonin Scalia in February. When the Judiciary Committee of the U.S. Senate takes up a nominee and the vetting process begins, one of the issues worth examining will be that nominee’s record and previous statements, if any, regarding religious liberty and the proper interpretation of the First Amendment’s religion clauses. As always, count on this blog to provide relevant information and coverage of any Supreme Court nominee and confirmation hearing.
Trinity Lutheran: On a related point, the U.S. Supreme Court will eventually have to take action on their decision to hear the church funding case involving Trinity Lutheran. Since then, the Court has declined to set a date for oral argument, prompting speculation that the delay is an attempt to avoid a 4-4 split.
White House Office of Faith-Based and Neighborhood Partnerships: What will become of the White House Office pertaining to faith-based partnerships with the federal government? President George W. Bush created the office during his tenure. President Barack Obama retained the office but changed its name and, to some degree, its focus. He also created a Faith-based Advisory Council made up of diverse religious leaders to provide recommendations to the President. At some point early during Donald Trump’s presidency, we will likely find out whether he plans to continue the office, and — if so — in what form.
Faith-Based Partnership Safeguards: Related, what will become of President Obama’s implementation of constitutional safeguards governing partnerships between the government and faith-based service providers? The final rules were the culmination of years of discussion, beginning with the Faith-Based Advisory Council recommendations and ending with final rules from federal agencies designed to protect taxpayers, faith-based institutions, and the beneficiaries of government-funded services. A new administration can work through the same process to implement or remove such rules. Will they change?
IRS Electioneering Regulations: During his campaign, President-elect Trump called for the removal of IRS regulations prohibiting non-profit organizations, including churches, from engaging in political campaigning. These rules currently are interpreted to forbid pulpit endorsements for or against candidates. As President, will he follow through on this pledge during his first year in office?
Immigration/National Security Policy: President-elect Trump also campaigned with indications that he embraces a policy of religious profiling targeting Muslims in immigration and surveillance related to national security. He went so far as to suggest that he would be willing to look into shutting down certain mosques. In 2017, we should watch closely any effort to engage in religious profiling as a part of our immigration and law enforcement efforts.
Arlene’s Flowers: In a highly-watched case, the Washington State Supreme Court heard oral arguments in November of this year in a case involving a florist’s refusal to provide services for a same-sex marriage ceremony. Washington’s anti-discrimination law prohibits discrimination on the basis of sexual orientation, but its constitution guarantees “absolute freedom of conscience in all matters of religious sentiment, belief and worship.” The court’s decision applying the law to this dispute is expected sometime next year.
Religious Liberty Legislation: As always, state legislation impacting religious liberty is worth monitoring. States continue to wrestle with the perception of conflict between religious liberty and nondiscrimination. I would expect 2017 will continue to bring legislative battles on the state level addressing that concern. In addition, states may continue to enact or amend laws with the name “Religious Freedom Restoration Act” (RFRA). When drafted like the federal RFRA law, such protections provide a helpful and balanced framework for resolving conflicts between state laws and religious liberty interests. When they stray from the federal RFRA language, they often undermine that careful balance.
On the federal level, congressional advocates of legislation entitled the First Amendment Defense Act (FADA) have indicated they intend to re-introduce the bill in the next session. As the BJC’s Holly Hollman wrote earlier this year, FADA sought to protect individuals, organizations, and corporations from penalty for “acting in accordance with a religious belief that marriage is between one man and one woman and that sexual relations are properly reserved to such a marriage.”
Stay tuned in 2017. We will get answers to some of these questions, and, no doubt, some unexpected religious liberty issues as well.