The Religious-Liberty Showdowns That are Likely to Happen In 2017

Liberty University President Jerry Falwell Jr. guides Donald Trump to his chair at a campaign event in Iowa in January 2016. Patrick Semansky / AP
Liberty University President Jerry Falwell Jr. guides Donald Trump to his chair at a campaign event in Iowa in January 2016.
Patrick Semansky / AP

Religious voters won Donald Trump the White House. Exit polls show that 81 percent of white evangelicals and 60 percent of white Catholics chose the president-elect over Hillary Clinton. Trump voters were also more likely than Clinton voters to say they attend religious services weekly or monthly. While these Americans likely had many different reasons for supporting Trump, James Dobson, the founder of Focus on the Family, said “the number one issue” for evangelical pastors who met with Trump this summer “was religious liberty—more than anything else,” according to a transcript of the meeting. “All the other issues relate to that one. … We’re losing our religious liberty,” he said.

But other Americans—especially those who are not white, conservative, and Christian—have a different set of concerns about religious liberty. Minority groups, including Muslims and Jews, have expressed fears about the rising discrimination, violence, and hate speech directed toward them. Many have argued that Trump’s rhetoric on the campaign trail has enabled this vitriol, evidenced by the post-election uptick in swastikas painted in public places and self-described Trump voters’ aggression toward minority groups. Others, including people who are lesbian, gay, bisexual, and transgender, argue that conservative Christians’ efforts to win greater liberty is really a way of undermining their rights.

Starting early in 2017, Trump’s administration—backed by a Republican-controlled Congress—will take up pending religious-liberty questions in all three branches of government. Every issue will come saddled with this fundamental conflict: Some groups’ claims to religious liberty may necessarily involve curtailing the rights of others. State legislatures are likely to continue facing religion-related issues, including bills on LGBT rights, abortion restrictions, and religious-conscience exemptions. At the federal level, much will depend on who’s appointed, and even basic changes will take time.

“There’s no such thing as a magic solution that a new administration can put into place to resolve all religious-freedom issues,” said Kristina Arriaga, the executive director of the Becket Fund for Religious Liberty, a law firm that litigates cases related to religious freedom.

No matter what happens, it seems clear that the conflict over religious liberty and discrimination will be the basis of some of the biggest fights and policy shifts over the next two years. What’s also clear is that religious liberty will not just be an issue for the white, conservative Christians who voted Trump into office. While it’s impossible to list comprehensively every religious-freedom question pending at the state and federal levels, here’s a look at some of the biggest potential areas for conflict and change.

Among minority religious groups, and specifically Muslims, many worry that Trump’s administration will increase the already existing limits on their religious practice. “On the campaign trail, we heard now-President-elect Trump call for things like a national registry of Muslims and a ban on Muslims entering the U.S.,” said Farhana Khera, the president and executive director of Muslim Advocates, a legal organization focused on protecting Muslims’ civil rights. And “post-election, we’ve seen some troubling implications of the types of ideas and people he is surrounding himself with.”

She cited New York Representative Peter King, who apparently urged Trump in a meeting to implement a federal surveillance program focused on mosques, similar to the NYPD’s recently shuttered initiative. She also mentioned Kansas Secretary of State Kris Kobach, who carried a memo into a meeting with Trump proposing a total ban on Syrian refugees, the renewal of a formerly existing tracking system for Muslims coming into the United States, and a slate of questions for “high-risk aliens,” including whether they believe in Sharia law.

While courts have ruled that efforts like NYPD’s surveillance program were illegal, “there’s potentially a specter, at the federal level, of the government attempting to replicate what the NYPD was doing,” said Khera.

The courts will be a huge determining factor for religious-liberty issues in 2017. When he takes office, Trump will be in the unusual position of immediately getting to name a Supreme Court justice to replace Antonin Scalia, who died in February of 2016. The president-elect may well get to appoint additional justices within the next four years: By Election Day in 2020, Ruth Bader Ginsburg would be 87 years old, Anthony Kennedy would be 84, and Stephen Breyer would be 82.

This was almost certainly part of Trump’s appeal. “If you look at … those who voted for President-elect Trump, whether it’s evangelicals or Catholics, the number-one issue by far was the Supreme Court,” said Kelly Shackelford, the president and CEO of First Liberty Institute, a Texas firm that litigates religious-liberty issues. While this is hard to verify, surveys have suggested religious liberty is among the topics clergy discuss most at worship services. Election exit polls also suggest the Supreme Court was the top issue for a majority of Trump supporters.

While Supreme Court appointments may be the flashiest way of shaping the judicial system, “there are almost 100 judicial seats waiting to be filled by the president, [including] courts of appeal and district courts,” Shackelford said. “Those have a huge impact on religious-liberty and constitutional issues.”

Judge appointments—made by the president and confirmed by the U.S. Senate—are one direct way Trump could influence the many controversial, religion-related cases currently wending their way through the court system. A number of pending suits deal with fallout from the Affordable Care Act, for example, including its requirements related birth-control coverage and treatment of LGBT patients. Lower-court judges, including Trump appointees, will continue playing a big role in how these conflicts are resolved.

Trump will also have the chance to influence these legal fights through executive orders and appointments. Some of President Obama’s boldest moves on religion-related issues happened through executive action: In 2014, for example, the administration ruled that federal contractors cannot discriminate in hiring based on sexual orientation and gender identity, which some religious groups decried. Various departments also interpreted the Civil Rights Act of 1964 and the Education Amendments Act of 1972 to argue that federal law protects LGBT Americans from discrimination—most prominently, the Departments of Justice and Education sent a letter to school districts around the country asserting these rights for transgender students. This interpretation is contested, though, and some religious groups have raised concerns about its potential consequences.

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SOURCE: The Atlantic
Emma Green