Trump Religious Liberty Order Is Modest But Has Implications for Education

By Mark Walsh — May 04, 2017 3 min read
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President Donald Trump on Thursday issued an executive order on religious liberty that was much more modest in scope than some had expected, but which still drew criticism from progressive groups, including those that say the order could have harmful effects in education.

“We were bracing for a direct attack on the LGBT community that would have allowed attacks on protections for LGBT students,” said Nathan Smith, the public policy director of the GLSEN, formerly known as the Gay, Lesbian, Straight Education Network.

However, the order signed by Trump does not include the provisions in a draft version—leaked earlier this year—that would have protected religious freedom to a broad definition of individuals and organizations “when providing social services, education, or health care; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with federal, state or local governments,” as the draft stated.

Groups including GLSEN, the American Civil Liberties Union, and the Human Rights Campaign expressed concerns that such language would have allowed, say, school principals or counselors with an individual religious objection to gay rights to deny help or equal treatments to gay, lesbian, bisexual, or transgender students. (As I reported in 2015, state religious liberty laws have sometimes been controversial and have presented school administrators with challenges for accommodating student religious beliefs.)

The order signed by the president in a Rose Garden ceremony on the National Day of Prayer has three main provisions: one seeking to guarantee that churches may express their views on public policy matters without losing their tax-exempt status; one to make sure religious organizations may be able to object on grounds of religious conscience to the contraceptive-care coverage mandated by regulations under the Affordable Care Act; and one ordering Attorney General Jeff Sessions to “issue guidance interpreting religious liberty protections in federal law.”

“We will not allow people of faith to be targeted, bullied or silenced again, and we will never stand for religious discrimination,” Trump said at the White House event, attended by clergy members and represenatives of religious groups.

Smith, of GLSEN, said that the attorney general’s provision is vague and provides Sessions a lot of flexibility to interpret federal measures in ways that could harm students.

“For us, that one is a fairly large red flag of things to come,” Smith said.

The Human Rights Campaign and the ACLU also criticized the order, with the ACLU vowing to challenge it in court.

Many religious organizations praised the president’s executive order.

“The president’s order makes clear that all federal agencies and lawyers must obey the law and respect religious liberty,” said a statement from Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor, a Roman Catholic religious order that challenged the contraceptive mandate. (Religious colleges and K-12 schools are among other parties that have challenged the mandate, in a case that the U.S. Supreme Court took up last year but in which it issued a modest ruling aimed at coaxing the parties to compromise.)

However, another conservative religious liberty group that has been involved in the battles over transgender student rights, the Alliance Defending Freedom, expressed disappointment that the executive order did not go further.

“Though we appreciate the spirit of today’s gesture, vague instructions to federal agencies simply leaves them wiggle room to ignore that gesture, regardless of the spirit in which it was intended,” Michael Farris, the president of the alliance, said in a statement.

A version of this news article first appeared in The School Law Blog.