Vail Law column: Trump’s executive order and separation of Church and State
Oops, he’s done it again, the “he” in this case being The Donald, and the “what” being stepping on the petticoats of the Constitution.
Or, maybe, not so much.
The latest that’s got some critics’ undies in a bunch is Trump’s much self-touted executive order intended “to protect and vigorously promote religious liberty.”
Well, what’s so bad about that?
Ah … nothing — other than possibly running up to the edge of befouling the Constitution and subtly undergirding the fundament of our democratic freedoms pertaining to religion.
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But let’s ferret this thing out a bit.
In early May, the President signed an executive order meant to allow churches and other religious organizations to become more active politically. The order directs the IRS not to take “adverse action” against churches and other tax-exempt religious organizations participating in political activity that stops short of endorsing a candidate for office.
While there are those who argue that the actual effect of the order is limited, there are others who take the position that the implications, in Trumpspeak, could be yuge!
While rabbis, priests and pastors are already free to deliver political speeches, and regularly do so — think back to the pulpit thunder delivered by one Martin Luther King Jr. — under the 1954 Johnson Amendment, churches and other tax-exempt organizations are restricted from endorsing or explicitly opposing political candidates. But there are ways of practicing a political sidestep to dance around this restriction.
The Trump executive order doesn’t change that.
Instead, the order prevents the IRS from expanding its restrictions on political activity by religious groups.
What else the order does is provide “regulatory relief” for organizations that object on religious grounds to a provision in Obamacare that mandates employers provide certain health services, including coverage for contraception. To many, that’s a big deal. To the Trump base for the red meat it offers and to the opposition for the admixture of religion and policy that the First Amendment is meant to hold apart.
While the order may in some respects be more symbolic than substantive, the bombast undeniably sets a tone.
In his remarks accompanying signing of the order, the President offered that the order would prevent religious groups from being singled out for their political views. “We will not allow people of faith to be targeted, bullied or silenced anymore,” the President insisted. “And we will never, ever stand for religious discrimination. Never, ever.”
All laudable in its way, I suppose. But there are a couple of caveats here.
First, the President’s declamation of religious freedom for all strikes some as flying in the face of the muscular steps his administration has taken to bar entry to citizens from some Muslim-majority nations and his campaign vows to block all Muslims from the country. Second, there are two parts to our guarantee of religious freedom: one that protects us from the “establishment” of religion and the second that insures the free exercise of religion.
The first protection (known as the “establishment clause”) says that an official national religion shall not be tolerated in these United States. The second (the “free exercise clause”) says that you and I, your neighbor and my enemy may each peaceably practice any religion we may choose It’s up to each of us, guided only by the dictates of our conscience.
Specifically, the First Amendment to the Constitution provides in relevant part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”
As I have noted before, first is first for a reason; it is of preeminent importance, and the first part of the First Amendment guarantees our religious freedom. This is no accident, considering the founding of the nation. The Pilgrims, after all, fled to the New World to escape religious persecution.
And so the Founders made clear and unequivocal that Church and State were not to mix and that their realms were to be held at length from each other. Religious practices and institutions could exist in peace without interference from the State and vice versa. What’s more, if churches wish to enjoy the privileges of tax exemption, what they hold in their hearts may not be part of political campaigns, not, at least, under the banner of the church or synagogue or mosque.
While the order really doesn’t change much, it is the tone that worries. One frets about what the next step might be. Or else the order was simply an elaborate photo-op and payback to the campaign’s evangelical supporters. One thing is certain though: Democracy requires eternal vigilance. What sometimes starts as a whisper can become a roar.
Ears perked then, but this particular executive direction seems little more than a devil that has kicked up a few weak motes of dust, a paper tiger without much growl.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.