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.”
noted that people and organizations do not “forfeit their religious
freedom when providing social services, education or health care.”
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
— 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 market.
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
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.
Another 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
His take on the draft is basically that it says the current
administration supports RFRA and wants people to do their best to comply
RFRA, a 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