Trump’s Religious Freedom Day Proclamation is Problematic

Trump Religious Freedom Day proclamation

In his Religious Freedom Day proclamation, Donald Trump made a consequential and problematic statement placing religious liberty above rule of law. Were this a ceremonial gesture meant as a statement of goodwill and not one in a line of related actions and statements, it wouldn’t be cause for concern. Given this administration’s statements, actions and directives, however, today’s proclamation offers yet another reason to worry.

In his proclamation, Trump said in part:

Today, Americans from diverse ethnic and religious backgrounds remain steadfast in a commitment to the inherent values of faith, honesty, integrity, and patriotism.  Our Constitution and laws guarantee Americans the right not just to believe as they see fit, but to freely exercise their religion.  Unfortunately, not all have recognized the importance of religious freedom, whether by threatening tax consequences for particular forms of religious speech, or forcing people to comply with laws that violate their core religious beliefs without sufficient justification.  These incursions, little by little, can destroy the fundamental freedom underlying our democracy.  Therefore, soon after taking office, I addressed these issues in an Executive Order that helps ensure Americans are able to follow their consciences without undue Government interference and the Department of Justice has issued guidance to Federal agencies regarding their compliance with laws that protect religious freedom.  No American — whether a nun, nurse, baker, or business owner — should be forced to choose between the tenets of faith or adherence to the law.

[Emphasis Mine]

Rule of Law & the Establishment Clause

One of the core tenets of law is its basis – it’s foundational structure. That structure comes from the U.S. Constitution and its subsequent amendments (and case law clarifying that foundation). Key among the nation’s founding laws is the First Amendment.

Notably, the First Amendment’s Establishment Clause.

While in its original form the Establishment Clause may not appear to have much bearing on Trump making a statement placing religious belief above rule of law, an examination of cases the U.S. Supreme Court has heard over the years demonstrates just how dangerous that bolded line of the proclamation actually could be if used in force of law by the administration.

Through examination and clarification by the Supreme Court, the Establishment Clause sets out three criteria for judging whether an action by a government entity – be it local, state or federal – violates the First Amendment. Set up in the case of Lemon v. Kurtzman, a government action can only “assist” religion if:

  1. The purpose of the assistance is secular in nature
  2. Said assistance cannot endorse, further or otherwise promote religion (or, conversely, inhibit it)
  3. The assistance does not excessively entangle church and state

Where Trump’s proclamation runs afoul of the Lemon Test (as the criteria are often collectively called) is in its putting the First Amendment’s Free Exercise Clause above the law and that established criteria.

The Free Exercise Clause 

Courts have struggled for years to find a balance between the Establishment and Free Exercise clauses as they often come into conflict. The federal Religious Freedom Restoration Act largely resulted from this ongoing legal tug-of-war.

While the Establishment Clause lays out prohibitions on government conduct, the Free Exercise Clause outlines individuals’ religious protections. Essentially, a person is free to believe in and practice their religion as they please so long as it does not impede a “compelling” governmental interest. The key word – one that courts struggle with every time a religion-based case winds its way through courts – is what “compelling” interest the government should and does have.

An example of this is human sacrifice. The government has a compelling interest in preventing the murder of other human beings, so the practice of human sacrifice is not a protected religious practice.

While that’s a clear-cut example, most cases involving religious practice aren’t as easy to discern.

Trump’s Problematic Statement

No American — whether a nun, nurse, baker, or business owner — should be forced to choose between the tenets of faith or adherence to the law.

Few presidential proclamation sentences pack such a constitutionally questionable wallop in so few words. But these words do.

They put in question the very nature of compelling interest – that is, the government’s interest in preventing discrimination against historically targeted populations. The Civil Rights Act has passed constitutional muster each time it’s been challenged in court, but Trump’s statement appears to question the very nature of those protections.

Trump’s words put religious belief – not actions based on those beliefs, but beliefs themselves – above rule of law. This upends decades of Supreme Court case law and offers an ahistorical view of how religious belief has more often been used as a sword and not a shield throughout American history.

Religion as a Sword

In his book entitled Take Your Choice: Separation or Mongrelization, former U.S. Senator Theodore Bilbo used religious belief as the crux of his argument against equality for people of color.

In the book, he argued, “Nothing is more sacred than racial integrity. Purity of race is a gift of God.” He added, “And God, in his infinite wisdom, And God, in his infinite wisdom, has so ordained it that when man destroys his racial purity, it can never be redeemed. This should be sufficient to show that any statement which says our Christian religion forces us to accept the social equality status of the races and to sanction intermarriage as the private affair of the two individuals concerned is utterly and absolutely fallacious.”

Later, discussing the children of interracial couples, he argued, “We refuse to believe that the destruction of either the white or the black race is in accordance with the Divine plan of God. Rather, there is every reason to believe that miscegenation and amalgamation are sins of man in direct defiance to the will of God.”

These are the words of a former sitting U.S. Senator and former governor of the state of Mississippi.

And his words aren’t an outlier.

Prior to the passage of the Civil Rights Act – even before the 1954 Brown case that forced the desegregation of schools – Georgia Governor Allen Candler used religious belief to maintain the inferiority of races as a basis for unequal access to education. “God made them negroes and we cannot by education make them white folks,” he argued.

Brown v. Board of Education didn’t stop religion-based arguments against unequal education; in fact, if anything, the high court’s ruling only increased the frequency and fervor of those arguments.

Slate‘s Jamelle Bouie offered insight into ritualistic nature of racism and religion in the south throughout recent history:

These lynchings weren’t just vigilante punishments or, as the Equal Justice Initiative notes, “celebratory acts of racial control and domination.” They were rituals. And specifically, they were rituals of Southern evangelicalism and its then-dogma of purity, literalism, and white supremacy. “Christianity was the primary lens through which most southerners conceptualized and made sense of suffering and death of any sort,” writes historian Amy Louise Wood in Lynching and Spectacle: Witnessing Racial Violence in America, 1890–1940. “It would be inconceivable that they could inflict pain and torment on the bodies of black men without imagining that violence as a religious act, laden with Christian symbolism and significance.”

Bouie went on to note, “Many other defenders of lynching understood their acts as a Christian duty, consecrated as God’s will against racial transgression,” adding:

As UNC–Chapel Hill Professor Emeritus Donald G. Mathews writes in the Journal of Southern Religion, “Religion permeated communal lynching because the act occurred within the context of a sacred order designed to sustain holiness.” The “sacred order” was white supremacy and the “holiness” was white virtue.

Perhaps no one know this better than NAACP leader Walter White. He wrote in 1929:

“It is exceedingly doubtful if lynching could possibly exist under any other religion than Christianity. No person who is familiar with the Bible-beating, acrobatic, fanatical preachers of hell-fire in the South, and who has seen the orgies of emotion created by them, can doubt for a moment that dangerous passions are released which contribute to emotional instability and play a part in lynching.”

And this is just the tip of the iceberg.

Religious belief has been used throughout history to marginalize every class protected by federal and state laws in modern America from people of color and women to those from other countries (national origin discrimination) and those living with a disability.

It’s a Pattern

In his statement today, Trump wasn’t referring to people of color (for a change) but to those who would seek protections from discrimination based on sexual orientation and gender identity. Similar to their brief filed in the Masterpiece Cakeshop case (which was unusual in and of itself), the Trump administration’s suggestion that religious belief should supersede rule of law is repeated and unambiguous.

Perhaps the most obvious of the host of instances the Trump administration has sided with religious believers over constitutional rule of law is the Department of Justice’s unusual ‘religious liberty’ memo released in October 2017.

We wrote about the memo at the time saying:

Capping off a week where the Department of Justice rescinded workplace protections for transgender people, Attorney General Jeff Sessions released a lengthy memo today outlining the DOJ’s intention to allow discrimination through use of ‘religious liberty’ exceptions. The wide-spanning memo never explicitly mentions LGBTQ people, but targets every industry and avenue LGBTQ people have been fighting legal roadblocks to promote equality.

In its multiple ‘key principle’ statements, the “Protections for Religious Liberty” memo essentially offers everyone from adoption agencies and universities to businesses and government entities a license to discriminate against LGBTQ people.

The article went on to detail the multitude of instances the Trump administration used religious belief as a sword (rather than a protective shield) to marginalize LGBTQ people.

While it should go without needing to be stated, placing religious belief above existing civil rights law – in particular, carving out classes of people that can legally be discriminated against by businesses open to the public – will only lead to further degradation of democratic norms and protections for other classes of people.

After all, once a legal precedent exists allowing discrimination against one identity, cases challenging other protected identities will assuredly follow just as other ‘religious liberty’ cases rushed through the courts following the abhorrent Hobby Lobby decision (something Justice Ginsburg warned about in her remarks dissenting from the court’s majority decision).

It appears, for the moment, Trump is merely laying more groundwork for a larger ‘religious liberty’ initiative down the road.

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Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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