By General Counsel Holly Hollman
What does the election of Donald J. Trump mean for religious liberty? As with many important issues, President-elect Trump has no significant record or concrete positions on the topic. Specific church-state issues rarely arose during the presidential campaign, and the Baptist Joint Committee has found nothing prior to his candidacy to indicate that he has given much thought to the matter. It is not clear what he thinks or intends to do.
That said, we have plenty of work ahead. All presidents exercise leadership in ways that impact the status of our First Freedom. Specifically, we can expect the president’s influence through policy initiatives, both in the executive branch and working with Congress; through appointments, particularly judicial appointments; and through statements that inevitably will shape the public’s understanding. Here’s what we know:
POLICY
Trump has not asserted a defined vision of religious freedom that would lead to particular policies. He has not affirmed the American tradition of religious exemptions or articulated a commitment to the separation of church and state. During the campaign, he made only a few statements about positions in this area.
He embraced the Republican platform plank that seeks to repeal the so-called “Johnson Amendment,” which refers to an IRS rule that prevents candidate endorsements by any nonprofit 501(c)(3) organization. The vast majority of churches enjoy that most favorable tax treatment and are therefore covered by that category. Trump claimed the rule threatens religious freedom and that repeal would benefit Christianity and other religions, but repealing that rule jeopardizes an important protection for both politics and religion. Furthermore, while politicians may understandably want endorsements from churches and the implied religious approval of their agenda, changing the rule is unpopular with the vast majority of those who would be affected by the change.
Trump supports school vouchers, which divert public education dollars from public schools to private schools, including religious ones. That is problematic for religious liberty. The sole education policy experience of his nominee for secretary of education, Betsy DeVos, is aggressive support for the privatization of education. DeVos and her family have been staunch supporters and financiers of voucher efforts and charter schools, seeking minimal public oversight of them.
Trump has said he would sign the First Amendment Defense Act, though it is unclear what version of that act may be introduced in the new Congress. FADA is one of several pieces of legislation introduced last Congress that purports to resolve some conflicts between LGBT protections and the rights of organizations and individuals with religious beliefs against same-sex marriage. He has not fully articulated a position on these conflicts that dominate many religious liberty debates, nor has he commented on the status and meaning of the federal Religious Freedom Restoration Act (RFRA) and similar enactments at the state level. The BJC is suspicious of all attempts to amend and upset the delicate balance embodied in the federal RFRA, one way or another.
VICE PRESIDENT AND PRESIDENTIAL APPOINTMENTS
While Donald Trump does not have much of a record on religious liberty, Vice President-elect Mike Pence does. As a former member of Congress and governor of Indiana, Pence is closely aligned with a political agenda often associated with the “Christian right.” He is a strong supporter of school vouchers and is perhaps best known outside of Indiana for signing an aggressive and ill-timed version of a state RFRA.
Trump appointments throughout the executive branch will certainly affect religious liberty, based on each official’s views and commitment to strong constitutional values. His nominees for attorney general, secretary of state and secretary of education all had to answer questions related to religious liberty during their confirmation hearings. There has been no word yet on who he will name to head the White House Office of Faith-based and Neighborhood Partnerships and what direction that office may take under his presidency. He also has an opportunity to name an ambassador for international religious freedom (a post currently held by Rabbi David Saperstein).
Most significantly, he will appoint federal judges, including the next member of the U.S. Supreme Court to replace the late Justice Antonin Scalia. President-elect Trump has said that he wants to appoint justices and judges in the mold of Justice Scalia, which is not reassuring for religious liberty advocates. Scalia is known in religious liberty circles as the author of the decision that eviscerated the Free Exercise Clause (Employment Division v. Smith) and for having a weak view of the Establishment Clause that would allow government to favor religion (at least monotheism).
PUBLIC STATEMENTS
As a candidate, Donald Trump made vague references to attacks on religious freedom and said he would be a champion for Christians. He referred to the potential of our country if we worked together “as one people, under one God, saluting one flag.” He asserted that when he is president everyone will say “Merry Christmas.” He offered little explanation for these statements, leaving speculation that they were simply an appeal to religious voters from the “Christian right.” Such statements, however, can erode the public’s understanding of religious freedom. Most worrisome are some of Trump’s statements regarding Muslims, particularly those about potential bans and registries. Whether these particular policies or others are actually pursued, rhetoric singling out for detrimental treatment a group of people based on religion harms religious liberty.
As BJC supporters and allies know, Donald Trump becomes president at a time when the meaning of religious liberty is being debated in challenging contexts. Reckless, ill-informed and careless statements can harm understanding and undercut support for religious freedom. We need a greater understanding and appreciation of what the American tradition of religious liberty has meant for our country and the world, and we need leaders who will carefully tend to that legacy.
CONCLUSION
Putting aside where the blame lies, the presidential election has left our country deeply divided. A great deal of work is needed across a number of important issues. Religious liberty is a treasured American ideal with a long history of bipartisan support, at least with regard to the major principles. Our first priority is working to ensure understanding and support for those core principles.
As Baptists and Americans, we recognize that all have the right to religious liberty, and we owe that freedom to our forebears who fought for the separation of church and state. We believe that strong protections for free exercise and no establishment are essential, and our mission will continue to guide our work and direct our activities, just as it has through presidential transitions over the past eight decades. As always, the BJC is watching closely, working with allies and listening to concerns to find common ground. With your continued support, we will engage the new administration and Congress in various ways and continue to lift our voice for religious liberty for all.
