A long-anticipated executive order dealing with issues of religious liberty signed Thursday morning by President Donald Trump drew a mixed reaction from Orthodox community advocates and other proponents of faith communities, who welcomed the administration’s statement to prioritize the rights of religious groups and their adherents, but said that the text’s vagueness leaves much uncertainty about the future of several controversial issues.
The order contains a directive to federal agencies to give religious leaders more freedom to take political positions and endorse candidates for office, instructions to “address conscience-based objections” related to the Affordable Care Act, and a general order that government bodies should “vigorously enforce federal law’s robust protections for religious freedom.”
Many traditional religious groups had hoped that the order would specifically address the many legal battles and gray areas created in the wake of the Supreme Court and Obama administration’s decisions relating to morality, as did appear in a version of the order that was leaked to the media in February. The present order makes no explicit attempt to address the issue.
“An executive order that would have covered more areas with greater clarity would have been preferred,” Rabbi Abba Cohen, Agudath Israel of America’s vice president for federal affairs and its Washington director, told Hamodia. “I won’t go so far as to call it a disappointment, but we don’t really know what the agencies are going to do with this and what effect it will really have.”
Several executive orders by the Obama administration created much confusion over how government would treat religious and faith-affiliated organizations whose employment policies reflected their beliefs. Additionally, there is a rising number of court cases of religious business owners being sued for their refusal to provide services for events to which they object. The few legislative attempts to address the issue have stalled.
“I think there has been enough controversy over the executive order that it will get members of Congress thinking in that direction. Especially with majorities in both houses, it should be a big incentive for them to act,” he said.
Rabbi Cohen added a hope that “Federal agencies will, in regulation and enforcement, see the executive order in the broader context of conveying a message to more aggressively protect religious liberty in the various contexts that issues and conflicts might come up.”
Nathan Diament, the Orthodox Union’s executive director for public policy, took a more positive view of the order.
“This was a broad policy statement that the laws protecting religious liberty will be enforced in a robust way. The previous administration consistently interpreted these laws in ways that were unfriendly to religious groups, and this is restoring the primacy and value of religious liberty,” he told Hamodia.
Despite the fact that threats to religious organizations and individuals posed by their traditionalist positions was not explicitly addressed, Mr. Diament was hopeful that the spirit of the directive would “lay the foundation for a discussion” that could reverse some of the effects of the Obama administration’s policies in this area.
Both Rabbi Cohen and Mr. Diament attended the order’s signing and ceremony that followed in the White House’s Rose Garden.
A requirement of Obamacare which required religiously affiliated businesses to provide medical goods which violated the beliefs of some groups was the subject of two Supreme Court challenges. The 2014 Hobby Lobby decision protected the rights of businesses to exempt themselves from providing the goods. Last year, a short-handed High Court was unable to produce a majority decision in Burwell, a case that dealt with similar issues, leaving the status of many organizations in limbo. Current legislative attempts to repeal the Affordable Care Act add an additional level of uncertainly as to how regulations will apply in the future.
“The steps government was taking to force religious organizations to violate their beliefs was a very hostile act which could have been a harbinger of a dangerous trend … From the way the order discusses the matter, it is not clear how it will be addressed, but if it’s effective, the president deserves credit for it,” said Rabbi Cohen.
Mr. Diament said that many attempts he had made in this matter had been rebuffed by the Obama administration and was confident that “[President] Trump will do the right thing and take away the regulations.”
The order’s strongest language was reserved for its instructions for government agencies to take a light hand in enforcing the Johnson Amendment, which uses the tax code to prohibit organizations that enjoy tax-free status from participating in a political campaign or endorsing a candidate for public office.
Mr. Diament said that the nature of an executive order is limited in how much it can do to negate legislation and stressed that the law remains in place. He said that the move could have a positive effect on giving Rabbis greater legal latitude to “talk about issues of the day from a perspective of Torah and Halachah,” but stressed that his organization would continue to discourage its members from making endorsements, which have the potential to cause “unwanted division in shuls.”
Both Rabbi Cohen and Mr. Diament expressed the sentiment that a full repeal of the law could be harmful to Rabbis, as it currently saves them from undesirable pressure to take public positions on political issues.
Reaction from religious-liberty advocates from beyond the Jewish world varied.
Lori Windham, senior counsel at Becket Law, who has represented the Little Sisters of the Poor, a co-defendant in the Burwell case, called the signing “encouraging.”
“It’s a good day for religious freedom and for the Little Sisters … this is a very important step, but we need to see the agencies follow through,” she told Hamodia.
Mrs. Windham added that her firm, which specializes in religious liberty cases, also welcomed moves to weaken the Johnson amendment. “The people who give you your 1040 shouldn’t be editing sermons,” she said.
Others took a more critical view.
“President Trump’s executive order on free speech and religious liberty, while welcome, is rather weak. It is woefully inadequate in meeting the challenges of our time,” wrote Ryan T. Anderson, a member of the conservative Heritage Foundation in an op-ed published in The Hill.
He joined many others in saying that the gap left by President Trump’s order puts the onus on Congress to pass bills such as the Russell Amendment and the First Amendment Defense Act as the most effective means of protecting religious freedoms against recent attacks. During his campaign, then-candidate Trump voiced support for such legislative efforts, but no movement has occurred on any of them.
The Russell Amendment, authored by Rep. Steven Russell (R-Okla.), was originally added to a major defense spending bill to protect the rights of religious organizations who contract with the government or receive federal grants, to make staffing decisions consistent with their faiths. It was struck under a veto threat from the Obama administration last December. In response to an inquiry at that time from Hamodia, Rep. Russell’s office said they were “disappointed,” but that the congressman had “received very positive signals by the incoming administration that this issue will be addressed.”
Following the signing of the President’s executive order, Rep. Russell’s communications director, Gabriel Bastomsky, told Hamodia that “Rep. Russell is still working with the administration toward the objectives that the Russell Amendment had set out to accomplish.”
The First Amendment Defense Act was introduced in 2015 by Senator Mike Lee (R-Utah) and Rep. Raul Labrador (R-Idaho) to protect groups with traditional moral belief systems, but has not advanced or been debated since.
Neither Sen. Lee’s nor Rep. Labrador’s office responded to several requests for comment from Hamodia on the executive order and their plans vis-à-vis their proposed legislation.
Updated Tuesday, May 9, 2017 at 4:09 pm