Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, May 4, 2017

The Religious-Liberty Executive Order

The term "nothing burger" gets overused, I think, but it seems to apply pretty well to today's Executive Order.  While I confess to feeling snarky about all the hysterical pre-denunciations we were getting from the usual Salon/Vox/Slate scare-quotes crowd that turned out to be wasted outrage, it's difficult to avoid feeling frustrated by the fact that some serious questions and issues are ignored by the order out of, it appears, a fear of the (inaccurate) "license to discriminate" charge. 

Yes, Americans who embrace our constitutional tradition of respecting religious liberty and the role of religious believers in public life will welcome, naturally, the Executive Order's declaration that the Administration is committed to protecting religious liberty.  The guidance it calls for from the Attorney General could also have positive effects, assuming that this guidance includes reminding all federal agencies about the demands of the Religious Freedom Restoration Act and other statutory provisions.  And, this Order would appear to be entirely safe from legal challenge ... because it doesn't do anything. 
With respect to the enforcement of the Johnson Amendment, it is already the case that the relevant agencies and officials are highly deferential to churches and religious leaders, especially when it comes to what's said in the context of sermons and homilies.  And while it is a good thing -- and long overdue -- that the Administration apparently intends to craft a more reasonable and inclusive religious exemption from the contraception-coverage mandate, such regulatory relief was already probably on its way, eventually, as a result of the Supreme Court's decisions.
As I see it, it is unhealthy and even dangerous for the well being of the human right -- everyone's human right -- to religious freedom that it seems "baked into the narrative" that (a) "religious freedom" means "a license to discriminate" and so is bad and (b) that "religious freedom" is something that gets manipulated by politicians so as to appeal narrowly to a subset of political conservatives.  


Garnett, Rick | Permalink