Tuesday marked the second presidential election during which the Little Sisters of the Poor continued to be in court insisting on the religious-liberty protection they are due as citizens of the United States. That the government would ever think to make the work of such heroines of civil society and heralds of the Gospel harder — and potentially impossible — is a shameful fact of American history under the Obama administration.
So what does the election of Donald Trump as president of the United States mean for the future of religious liberty? I asked Tim Schultz, president of the 1st Amendment Partnership, someone I’ve run into at many a religious-liberty meeting in recent years, this and other questions.
Kathryn Jean Lopez: Broadly speaking, what does the election of Donald Trump — plus a Republican Congress — mean for religious freedom in the U.S.?
Tim Schultz: Broadly speaking, it will mean an administration and Congress that does not actively interfere with the religious rights of millions of Americans through regulatory actions like the Department of Human Services contraception and abortion-drug mandate. It will mean that Congress is much more likely to advance legislation guaranteeing the rights of federal contractors to maintain their full religious mission. Though it is too soon to tell, it is very important to vigorously protect the rights of religious minorities. This is something that the Obama administration deserves praise for, and continuity of the bipartisan consensus in this area is extremely important.
Lopez: What’s going on in the states? Without a clear national articulation of some of the non-discrimination challenges out there, has the situation for bakers and florists and the like potentially changed at all? What’s your hope for religious freedom in the states?
Schultz: The well-known baker and florist cases occur under state and local non-discrimination laws (which cover nearly 60 percent of the country), so the federal government has little impact on these cases. After Obergefell, many legislatures have tried and failed to protect these artists through stand-alone legislation. If these rights are to be protected, the lessons of Arizona (2014), Indiana (2015), and Georgia (2016) suggest that they are only politically protectable if discrimination against LGBT persons is addressed at the same time.
Lopez: What does this election news mean for the Little Sisters of the Poor?
Schultz: All of those swept up by the HHS contraceptive and abortion-drug mandate are breathing a sigh of relief. The new administration will likely revise or rescind the mandate, freeing up groups such as the Little Sisters to serve their neighbors. Faith-based charities, colleges, and businesses — the victims of the HHS mandate — provide $1.2 billion in economic value to the U.S. economy every year, according to the Georgetown scholar Brian Grim. The freedom to serve will benefit all Americans, but especially the vulnerable Americans who were the focus of this election.
Lopez: As an advocate of religious freedom, what would you advise the president about the Supreme Court?
Schultz: Religious freedom advocates would like to see justices who have shown a keen understanding of religious freedom in their previous service on the bench. Justice Samuel Alito showed a deep and nuanced understanding of the constitutional and statutory issues as an appellate judge, and he has carried that over to the Supreme Court. Although he hasn’t appeared on President-elect Trump’s judges list, Stanford law professor Michael McConnell (who served on the Tenth Circuit) would be a home run as a Supreme Court nominee.
Lopez: What’s the educational opportunity here? I feel like people have been talking about religious freedom for almost eight years without it really resonating? Did the election signal a change or at least an opportunity?
Schultz: It’s hard to draw issue-specific lessons from something as complex as a federal election, but there is no doubt that many Christians voted for a candidate about whom they had misgivings because they believe their religious freedom faces grave threats. It would be a mistake to become complacent: Those who concur with the recent U.S. Civil Rights Commission Report equating religious freedom with bigotry will have less political power but the same ambitions. I’m also worried that religious-freedom supporters will feel that this election gives space for a strategy of one-sided overreach that ignores concerns of religious minorities or efforts by the LGBT community to end unjust discrimination. We should be genuinely in favor of pluralism and seeking the good of everyone, no matter what our present political position is.
Lopez: What’s the 1st Amendment Partnership and what are your top priorities?
Schultz: We are a platform for the nation’s faith communities to work together on legislation to protect religious freedom and to educate Americans about the pro-social value of faith to the nation, especially the most vulnerable. Most of our focus has been in state legislatures, and the political dynamics of these issues in states has instructive value for our many faith partners in their dealings with the federal government.
Lopez: What’s your pitch to people who are concerned Donald Trump could be a disaster for freedom and virtue?
Schultz: We should pray for all of our leaders, and hold them accountable when they fall short of promoting freedom and virtue. If President Trump threatens or fails to defend the rights of religious minorities, faith communities must be willing to push back even if they are not directly affected. Sikh, Muslim, and Jewish leaders have expressed fear that their rights are at increased risk in our present socio-political moment, and everyone should take those fears seriously. At the policy level, religiously motivated violence, harassment, and local zoning discrimination are all serious problems that the federal government has the legal power to redress, and we should be extremely zealous about encouraging the new administration to continue President Obama’s laudable record in this regard.
Lopez: And what’s your pitch to people who think that religious-freedom talk amounts to taking away rights from women, Americans who identify as LGBT — a “rollback” of rights, as we’ve heard from the Left?
Schultz: Many outcomes favored by reasonable left-of-center people — contraceptive access, protecting the LGBT community from violence and unjust discrimination, etc. — really can be pursued without fighting a zero-sum war with religious rights. Other progressive goals — law-enforcement and justice-system reform, poverty alleviation — can only be accomplished with the deep investment of faith communities, many of whom have sincere beliefs and practices not shared by progressives. Justice will require compromise, a commitment to pluralism, and a real desire to see fairness for all, including for people of faith.