Before he left office, former President Barack Obama issued a proclamation dubbing Jan. 17 “Religious Freedom Day.” Religious freedom is literally why Pilgrims fled their oppressive England to come to America and as such, it’s a foundational concept for our First Amendment.
Yet, even though Obama gave the idea its own special day, religious freedom doesn’t get a pass in this country. In fact, while it’s a landmark principle, the concept is increasingly challenged in all walks of life, from schools and churches to the military and the Supreme Court. Some of these battles stem from the very policies Obama supported — policies the Trump administration has started to reverse. It doesn’t take a constitutional law enthusiast to wonder: If we have religious freedom, why is it constantly being attacked?
Religious liberty wins and losses
Religious liberty zealots might posit every year is a banner year for the concept, but truly, 2017 was chock-full of wins, losses, and ongoing battles. Just this last year alone, dozens of issues, which often manifested eventually into lawsuits, circulated around the country. The very religious freedom Obama attempted, or pretended, to support had to fight to retain its authority this year.
This last year, a natural disaster revealed a stunning bout of religion-based discrimination. Following the devastation of Hurricane Harvey, several churches which had been offering housing, meals, and other provisions to people in need during that time needed assistance to make repairs to their own structures. FEMA’s Public Assistance Grant program helps with this, but it unfortunately was only available to nonprofit organizations, such as zoos, museums, and charities — not religious organizations.
It took several lawsuits, legal decisions, and an appeal for emergency relief to a Supreme Court Justice to finally put enough pressure on FEMA to reverse its discriminatory policy.
If churches can’t even experience religious freedom, who the heck can? If these churches had not pushed back, they would still be providing relief in place of the government, while the government discriminated against them, refusing to provide grants put in place just for organizations like them during times of need. While this outcome was a win for religious liberty, large bureaucracies like FEMA are some of the most egregious offenders of religious freedom.
One of the largest, perhaps more well-known religious liberty battles this year was fought, yet again, by another religious-based group and was, yet again, a result of an Obama-era policy. After successfully defending themselves at the Supreme Court against the Obama administration’s Health and Human Services mandate to provide contraception, in Zubik v. Burwell, the Little Sisters of the Poor were forced to head back to court after Pennsylvania and California sued them, demanding the group provide contraceptives in their state.
As Mark Rienzi, senior counsel at Becket and lead attorney for the Little Sisters of the Poor, said in a press release and on a media call I was privy to: "Josh Shapiro [Pennsylvania's attorney general] and Xavier Becerra [California's attorney general] think attacking nuns is a way to score political points. These men may think their campaign donors want them to sue nuns, but our guess is most taxpayers disagree. No one needs nuns in order to get contraceptives, and no one needs these guys reigniting the last administration’s divisive and unnecessary culture war." For an administration that valued religious freedom, Obama’s HHS contraception mandate made the Little Sisters pay to push back for the right not to violate their conscience.
Yet, the Trump administration finally offered some relief for advocates of religious freedom. He rolled back this particular aspect of the HHS contraception mandate in an Executive Order he issued in May. Trump had also promised during the campaign to dismantle the Johnson Amendment, which bans churches from discussing politics, and the May order demanded the IRS to relax their enforcement of that ban. Instituting both of these things was a breath of fresh air to tired soldiers in the fight for religious freedom.
Religious freedom continues to be challenged
It’s clear from the small sampling of cases above, there are not only dozens of complex challenges, but often they’re as a result of policies the government — which is supposed to protect religious liberty — has imposed. In his original proclamation, Obama wrote:
If we are to defend religious freedom, we must remember that when any religious group is targeted, we all have a responsibility to speak up. At times when some try to divide us along religious lines, it is imperative that we recall the common humanity we share — and reject a politics that seeks to manipulate, prejudice, or bias, and that targets people because of religion. Part of being American means guarding against bigotry and speaking out on behalf of others, no matter their background or belief — whether they are wearing a hijab or a baseball cap, a yarmulke or a cowboy hat.
On this, the Obama administration was correct; according to an annual report about religious liberty released in September 2017 called, "Undeniable: The Survey of Hostility to Religion in America," there has been a 15 percent increase — a slow but steady uptick — in legal cases that affect religious freedom. Just a few weeks ago, the Supreme Court heard one of the most infamous legal cases of the year involving free speech and free exercise — Masterpiece Cakeshop v. Colorado Civil Rights Commission.
To many, the case exemplifies a new hostility toward people of faith in their places of work. During oral arguments, Justice Anthony Kennedy, the de facto swing vote whom most people thought would favor the gay couple who tried to commission a wedding cake, but were denied, lectured the Court: “Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
Indeed, even just recently, in a case eerily reminiscent of Masterpiece, the Oregon Court of Appeals ruled against Aaron and Melissa Klein, owners of “Sweet Cakes by Melissa,” who were fined $136,927 — and subsequently lost their business — because they declined to bake a cake for a gay wedding, citing their religious beliefs. The outcomes of both of these cases remain to be seen, and the Supreme Court ruling on Masterpiece will impact religious freedom for decades to come.
What this means for religious freedom
While religious freedom isn't disintegrating before our very eyes — at least, not yet — it’s disingenuous for the Obama or even Trump administration, for that matter, to proclaim a “Religious Freedom Day” while espousing politics and policies that actively oppose the concept. Stirring words in a speech about Americans’ precious First Amendment mean little if those same Americans must spend thousands of dollars in a court of law defending their right to practice their faith in a synagogue, school, bakery, or ball field. I, for one, could do with fewer proclamations like Obama’s and more executive orders like Trump’s in May. While the former isn’t disastrous and the latter isn’t perfect, one is all smoke, and the other provides a little fire.
Hypocrisy, especially when it comes to a founding concept, should not be tolerated or ignored. If any administration, be it Obama’s, Trump’s, or the next president's, is going to give a moving speech on religious freedom and its importance, let it then be followed by policies which protect the very religious freedom they claim to value.
Nicole Russell is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator's Young Journalist Award.
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