May 5, 2017
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Friday, May 5, 2017. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
What will be the impact of President Trump's executive order on religious liberty? Only time will tell.
Just as expected yesterday, President Donald Trump signed an executive order dealing with a range of issues all concerning religious liberty. The signing of the executive order had been announced by the White House about 48 hours in advance, and the timing was to coincide with the observation of the National Day of Prayer. But even before turning to the actual text of what the President signed yesterday, it’s important to think about a couple of dimensions that are in the background of executive orders.
The first is very easy to understand. An executive order is signed into effect by the President of the United States, but it has to do entirely with the executive branch. Now the executive branch is massive. It involves everything that is not a part of the legislative and judicial branches, that means the entire bureaucratic reach of the federal government. But at the same time we have to recognize that as much impact as an executive order can have, it can be basically nullified or reversed by a subsequent president. That’s simply the lesson that there is no substitute over time for legislation. An executive order can have effect only as long as some subsequent president does not reverse it.Show Full Transcript
The second thing to keep in mind is that when you have talk of this kind of impending executive order, and there was plenty of talk in the days leading up to yesterday’s signing, you have a great deal of speculation about what will actually be in the executive order. But one lesson always to be learned here is that there is no executive order until the President of the United States signs it. You have to wait for the final text in order to understand what the executive order actually accomplishes. Yesterday’s executive order begins with a statement by the President promoting free speech and religious liberty. The President’s text said this
“By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to guide the executive branch in formulating and implementing policies with implications for the religious liberty of persons and organizations in America, and to further compliance with the Constitution and with applicable statutes and Presidential Directives, it is hereby ordered as follows:”
That introductory paragraph tells us that President Trump intended to make a major statement in defense of religious liberty. There are six different sections of the executive order, but the most meaningful of these are the first enumerated sections. First of all in terms of policy, the President directed,
“It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans’ first freedom. Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.”
Now that might sound like rather poetic and expansive language that might not actually determine policy. But in this context, it will. This is a statement of direction. Indeed it’s a directive from the President of the United States. Under some previous administrations, most importantly the administration of President Barack Obama, there had been an upfront disregard for religious liberty, a discounting and putting into a different category of religious liberty at the expense of new liberties, especially the liberties associated with the moral and sexual revolution going on around us. President Trump with those words in the introduction to his executive order says very clearly that where there is some question as to which liberty is going to have first place, it should rightly be the first freedom, which he identifies explicitly as religious liberty.
The section that has received the most attention is section 2 in which the President said,
“All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.”
Now we’ll just pause there for a moment, “religious and political speech.” We also have to remember that our most basic and fundamental freedoms are integral each to the other. They are tied together. So freedom of assembly and freedom of speech and freedom of religion—all of these are tied together. You can’t have actual freedom of assembly or freedom of speech if you don’t have freedom of religion, and the same would be true in terms of the interdependence of these fundamental freedoms. This statement from the White House, this executive order respects that and goes on to say,
“In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.”
Now that language might seem very formal and in contrast with the introductory language to be overly about policy, but we need to be clear why this particular section is so controversial. Back in 1954, the United States Congress passed legislation in a reauthorization of the Internal Revenue Service. That’s the reference here to the Department of the Treasury. The IRS is an agency of the federal government and in particular of the Department of the Treasury. And in that reauthorization of the Internal Revenue Service, President Lyndon Johnson, who was then Senator Lyndon Johnson, offended by the fact that a religious radio station had criticized him during his reelection campaign to the Senate, he inserted language which was then quite innocuous at least in the eyes of many senators that said that any IRS tax exempt organization, and that would include churches, would be forbidden from overtly political speech and in particular from any speech that could be construed as having an effect on or intending to have an effect on a political campaign or election.
So ever since 1954, many churches have wondered if indeed they are violating IRS code and putting their tax exempt status in question simply by speaking to moral issues, not to mention candidates who might or might not be involved in a current political campaign. This so-called Johnson Amendment was at the center of comments made by now-President Trump when he was running for president and in previous statements made shortly after taking office. The President said he was going to abolish the Johnson Amendment. This executive order we need to note doesn’t actually abolish the Johnson Amendment. But what it does is to send a signal to the Department of the Treasury and thus to the Internal Revenue Service it is not to take action against any church if it would not take similar action against any other organization.
Critics of the executive order yesterday have zeroed in on this particular statement because in it, it is now argued that churches are liberated by the President’s executive order to make overtly political statement from the pulpit. Now at this point we need to note that the last thing Gospel minded churches need to do is to politicize their pulpits, but we also have to recognize that when the Bible is preached, there are political ramifications. And when there is an election campaign, some of the most important theological worldview and moral issues always come to the fore. Just to take an example in the 2016 presidential election, the issue of abortion was a stark distinction between the Republican and the Democratic candidates and the Republican and the Democratic Party platforms. There’s simply no mistaking this, and a faithful pastor preaching the Scripture and honoring the Gospel speaking of what this picture reveals about the sanctity of human life during the term that could involve a political campaign could indeed have been charged with violating the federal law in terms of this IRS reauthorization statute known as the Johnson Amendment.
We need to recognize that IRS enforcement actions against churches have been extremely rare, but that’s not to say the threat has not been important. One of the things that a champion of civil liberties always has to be concerned about is what is routinely called a chilling effect, that is the threat was a chilling effect upon the freedom of pastors and of churches to speak to moral issues in the context of a political campaign. This is one of the issues that has greatly concerned many evangelical Christians, one of the reasons why candidate Donald Trump indicated that he would bring relief from that threat. Andd that’s why President Donald Trump signed the executive order that was handed down yesterday.
Another thing we need to note is that many of those who are on the Democratic Party side criticizing President Trump for signing this executive order are the very people who have openly appeared in many churches and what amounts to political rallies, but that is something that is simply to be written off as an expected inconsistency in Washington. But it’s an inconsistency that ought to be brought to our attention.
One of the other sections of the executive order that has attracted a great deal of attention is section 3. It is entitled,
“Conscience Protections with Respect to Preventive-Care Mandate.”
This is effectively President Donald Trump reversing the contraception mandate when it comes to religious organizations that had been put into place infamously by the Obama Administration. This is in terms of immediate relief the most important section of this executive order. The other section dealing with the IRS is only hypothetical in the sense there’s no current action by the IRS against any church or denomination, but the contraception mandate is a clear and present, urgent issue in terms of religious liberty and of theological conviction. And it’s for very good reason that this particular section is the most important in terms of the immediate foreground of America’s public life. This is really important.
The reversal of this contraception mandate is yet another reminder of the fact that elections matter, and they matter hugely because that Obamacare legislation, debatable in other terms, was most notorious for requiring religious employers, all employers frankly, but religious employers without adequate exceptions, to include coverage of all contraceptive methods, including those believed to be abortifacient. There are many Christian employers both in the profit and nonprofit sectors that simply could not go along with this, and this is a very important protection that is included in the executive order that was signed yesterday. For that we should be very thankful.
But the other controversy related to the executive order yesterday is not what was in it but what was expected by many to be in it and was notable by its absence, with people on both sides of the great political and worldview divide asking what it means that it isn’t in the executive order. And that is a blanket statement offering religious liberty protection to individuals and employers when it comes to the LGBT revolution and to questions of religious liberty. Let’s just remind ourselves that we have confronted an entire series of stories covering many states where cake bakers and florists and photographers have been told they have to participate in a same-sex weddings or they will face criminal or civil sanctions, and perhaps most importantly be run out of their professions and jobs.
But one of the interesting things we note here is that there was no reference to LGBTQ issues in the executive order yesterday at all. Now does that mean that those who were hoping for that kind of expansive religious liberty inclusion on this issue are simply empty-handed? No. Does it mean however that those LGBTQ activists who were warned against the policy are going to be satisfied with this language? No. That’s because in section 4 of this statement, the executive order simply includes these words:
“In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”
Now that statement could mean a very great deal, or it could mean very little. Time will tell. But here is what was absent: what was absent was any direct reference to those issues infringing upon religious liberty in the current revolution and sexuality and morality. Now is it absent entirely? Well, certainly there’s no direct reference. But on both sides of the issue there is either hope or fear that this particular section of the executive order could be used by the Department of Justice to issue binding regulations, again in the form of policy, that could offer those protections to those who are confronting the constriction of religious liberty in terms of the sexual revolution. Now as I just said, time will tell. It isn’t at all certain that that is what that section authorizes, but there’s good reason to believe that there is some hope that the Department of Justice will intervene in terms of regulations addressing these issues.
There had been open discussion in recent months about a division within the Trump administration that would put Ivanka Trump and her husband Jared Kushner on one side of the equation and the Vice President of the United States, Mike Pence, and the Attorney General, Jeff Sessions, on the other. Those including the Attorney General and the Vice President wanted robust religious liberty protections when it comes to LGBTQ issues. It was believed that Ivanka Trump and her husband Jared Kushner were opposed to the kind of direct reference to LGBTQ issues. So what does it means that there’s no direct reference? Again, time will tell. But time will also reveal what we already know, that an executive order can be very important. But again, it is no substitute for legislation. Until the United States Congress deals directly with these protections, our liberties are indeed vulnerable.
Should posting a Bible verse be a fireable offense in the military?
Next, a different story about religious liberty. This one appeared in the Wall Street Journal just in recent days. It’s by a rabbi, Simcha Goldman, the headline is,
“A Court-Martial for a Bible Verse.”
“Should Americans be prohibited from practicing their faith while serving in the military? The Supreme Court ought to take up Sterling v. U.S., which presents exactly that question.”
He goes on to explain,
“Around 2013, the plaintiff, Lance Cpl. Monifa Sterling, had displayed a Bible verse above her desk. It was a message from Isaiah: ‘No weapon formed against me shall prosper.’”
He goes on to say,
“That small act of religious devotion mattered to her, but the military considered it inappropriate. Her superiors ordered her to take it down. When she refused, the quotation was removed by a superior. Lance Cpl. Sterling was court-martialed and discharged from the Marines, in part for her refusal to remove the biblical message.”
Rabbi Goldman then goes on to write,
“Her story bears a striking resemblance to a lawsuit that I took to the Supreme Court in 1986. Several years earlier I had joined the U.S. Air Force, intending to serve my country while continuing to practice my Orthodox Jewish faith. As part of that faith, I always covered my head with a yarmulke. I did so for many years while in uniform, and without complaint. That is, until I encountered a vindictive military lawyer in 1981 who disliked an element of my expert testimony at a military hearing. He made a formal complaint about my wearing a yarmulke while in uniform. My commander subsequently ordered me to remove it.”
He went on to say that on the basis of his religious conviction, he refused to remove the yarmulke, and he ended up going before the U.S. Supreme Court whereas he notes he lost his case. And that’s why he’s so concerned about Lance Cpl. Sterling because as he says, her case should be the case taken up in terms of concern by everyone who prizes religious liberty. He goes on to say something else, and that is that he likely would have won his case, and this is certainly true, if it had come after 1993 when the United States Congress overwhelmingly enacted what was known as the Religious Freedom Restoration Act. The most important part of that act was a statement that the federal government could not infringe upon any religious liberty without it being an absolute necessity in terms of the federal government’s responsibility.
In the language of the legislation, the federal government would have to prove a compelling case for why there would be any infringement of religious liberty. There is no compelling case as to why a Jewish soldier cannot wear yarmulke. The Rabbi continued when he wrote,
“Applied properly, RFRA protects Lance Cpl. Sterling’s right to her small biblical display. As a Christian, she drew inspiration and strength from the verse during hard times. When her case landed at the U.S. Court of Appeals for the Armed Forces last August, the judges should have applied RFRA. Instead, they sided with the military, finding no real burden on her exercise of faith.”
The Rabbi then said,
“That decision fundamentally distorts the law and threatens all religious believers serving the nation.”
It would seem that any reasonable person would recognize that indeed this order from her military superiors was an undue infringement of her religious liberty. But it is telling that the Religious Freedom Restoration Act, though passed by Congress, has been in many ways undermined by successive administrations and also by many federal courts.
But there’s further irony here, and that was noted by someone who wrote in in a response to this article, a letter to the editor at the Wall Street Journal, this one from Commander Ross S. Selvidge, U.S. Navy Reserves retired. He wrote,
“In a corridor of the Pentagon itself there is a Bible verse on display that is also from Isaiah. At the bottom of a painting depicting a service member kneeling in prayer with his family is the following excerpt from Isaiah 6:8 which reads: ‘Whom shall I send and who will go for us? . . . Here am I. Send me.’”
This Navy veteran went on to say,
“It has served both as an inspiration for countless service members who pass by it and as a reminder to those who may not have served of the nobility of those who have answered ‘send me.’”
The irony of course is this: the United States Supreme Court has infringed many cases of religious liberty and including some cases very close to this one, but there are Bible verses in the very building in which those decisions are handed down. They are integral to the architecture and the decoration of the building, and now there is the irony that there were military superiors who ordered this Lance Cpl. to remove a Bible verse when the Pentagon itself features a Bible verse from the very same book of the Bible, the prophet Isaiah.
One other letter writer writing in, this one from Portland, Oregon, pointed out that there would be a great deal of national controversy about this, everyone would’ve heard about it in terms of major news media had this been a Muslim soldier who had been ordered to remove a verse from the Quran. But as it is, it’s rather telling that in our contemporary context a Christian order to remove a Bible verse from her work area doesn’t get much media attention at all, this article in the Wall Street Journal coming almost 4 years after this act took place. That too is a point that deserves our attention.
Planning a protest? Berkeley Police Department offers "symbolic arrests" to protesting citizens
Finally, I turn to something else in the Wall Street Journal. One of the most interesting sections of the Wall Street Journal in every day’s edition is a verbatim statement from something that is cited simply in the form that it stands, without commentary. This is just a text that is cited and printed in the Wall Street Journal. It’s entitled “Notable & Quotable.” This time it is a section from the policy statement of the police department in Berkeley, California. It tells us very great deal about what goes on in our country when we are told there’s been a major political protest and that protesters have been arrested. What exactly does that mean? Well remember this is a verbatim statement from the website of the Berkeley, California Police Department. The opening paragraph says this:
“The Berkeley Police and City of Berkeley want to facilitate the safe expression of constitutionally protected speech. We want to work in partnership with you to hold a safe and peaceful event.”
Remember, this is a political protest. The police department says they want to work in concert with protesters. It goes on to say the following items are things that we recommend you to do to ensure a safe event. The first of these several items identified by bullet point have to do with procedural issues such as filling out the right forms. But later in this statement amongst the things that organizers of protests are supposed to take into consideration is this:
“Do you want symbolic arrests? If so, where and when?”
So here you have the police department in a major American city telling those who are going to organize political protests that it would be convenient if they would tell the police department in advance if they want, remember the term that’s used by the police, “symbolic arrests,” and going so far as to ask if you do want symbolic arrests, where and when do you want them?
So the next time you see this kind of political protest, well, at least in Berkeley, California, those arrests might have been scheduled in advance for symbolic purposes with the police, with the protesters actually telling the police where and when they hope to be symbolically arrested. And that, dear friends, is a reminder that much of what you see in the news is indeed symbolic, not so much actually the news.