Depending on whether you like to look at the glass as half-full or half-empty, on Jan. 20 Americans will mark one year of Donald Trump’s presidency behind them or see at least three more to go.
Similarly, as the anniversary of Trump’s inauguration as the United States’ 45th president nears, advocates for church-state separation can lament the attacks Trump and his administration have launched – or they can take heart in the way the president’s actions have rallied the resistance and united those who are standing up for religious freedom.
After all, if there hadn’t been a Trump inauguration on Jan. 20, 2017, there likely wouldn’t have been a Women’s March on Jan. 21 that mobilized millions in Washington, D.C., and around the country.
That spirit of female empowerment continued throughout the year. As Sarah Leonard noted in The Nation, it should come as no surprise that amid this feminist solidarity, women felt able to step forward and expose long-buried sexual assault and harassment allegations against men in power. The #MeToo movement led to Time magazine honoring these “Silence Breakers” as the person of the year.
“The march drew together hundreds of thousands of women from across the country, along with the men who supported them, to protest gender oppression,” Leonard observed. “Many of these women returned home from the march and got involved in organizing for the first time in their lives.”
One of the issues women rallied around was access to birth control. Less than two weeks after Trump’s inauguration, a draft executive order limiting such access began circulating. Among other troubling possibilities, the draft signaled Trump’s intent to allow employers to cite religion as an excuse to refuse to provide access to no-cost birth control in health insurance plans.
The threat to women’s health and equality grew on May 4 when Trump used the National Day of Prayer as a backdrop to issue an executive order that directed the Department of Health and Human Services (HHS) to consider amending the Affordable Care Act (ACA) benefit that requires employers and universities to include in their health insurance plans all FDA-approved contraceptives at no cost. On Oct. 6, the Trump administration followed through by implementing new rules that allow employers and universities to deny birth control coverage if they have a religious or moral objection.
The backlash against these regulations was immediate. Americans United that very day promised to challenge the new regulations in court, and on Oct. 31, AU partnered with the National Women’s Law Center and the law firm Dentons to file the federal lawsuit Shiraef v. Hargan. The plaintiffs include five women at risk of losing birth control access due to the Trump rules: Mary Shiraef and two other University of Notre Dame students; Alicia Baker, an Indiana woman whose employer’s health insurance provider objects to some forms of birth control; and a woman employed by an Illinois university.
AU is not alone in challenging the rules: the American Civil Liberties Union and several states (including California, Maryland, New York, Pennsylvania and Virginia) have also filed lawsuits. The states are seeking a preliminary injunction that would stop the regulations from being implemented; that request was pending at Church & State’s press time.
Meanwhile, more than a half-million women submitted comments to HHS voicing their objections to the rules and their demand for access to equitable health care. Americans United was among the organizations submitting comments and joining allies for a rally in front of the HHS headquarters in Washington, D.C., in support of women’s health care on Dec. 5, the day comments were due.
Both AU’s lawsuit and comments spell out how the rules violate the rights of the more than 62 million women who currently have insurance coverage for birth control: The religious exemption for employers and universities is unconstitutional because it favors certain religious beliefs over others and excessively entangles the government and religion. The rules discriminate against women on the basis of sex and religion. And since the rules went into effect immediately without any opportunity for public review, they violated legally required procedures for adopting new rules.
Attacks on birth control access were just one salvo Trump launched against church-state separation this year. There were a host of others:
Discrimination Against The LGBTQ Community
At the same time the Trump administration was threatening to discriminate against women, it was foreshadowing similar threats against others. The draft executive order circulated last January and the May executive order also put using religion as an excuse to discriminate against the LGBTQ community on the to-do list.
On Oct. 6, the same day the birth control regulations were announced, Attorney General Jeff Sessions and his Department of Justice (DOJ) issued a 25-page guidance called “Federal Law Protections for Religious Liberty.” AU Legislative Director Maggie Garrett said this guidance could be used by people and businesses that want to use religious views as justification to ignore anti-discrimination laws, and by taxpayer-funded organizations that want to claim a religious right to discriminate in hiring and providing services.
“The guidance allows taxpayer-funded organizations, corporations and individuals to use religion as a trump card to almost any law,” said Garrett. “This guidance misses the mark: Our laws should be a shield to protect religious freedom and not a sword to harm others.”
HHS followed the DOJ’s guidance on Oct. 25 by issuing a request for information on “Removing Barriers for Religious and Faith-Based Organizations to Participate in HHS Programs and Receive Public Funding.” As Garrett explained, “What HHS is really asking for is how the agency could change its rules to allow groups to use their own religious litmus test to decide whom to hire and serve, and what services to provide within HHS-funded programs.”
Americans United responded to HHS’s request on Nov. 24 by submitting comments outlining why the department should not eliminate the so-called barriers.
“What some faith-based providers identify as barriers are actually neutral and generally applicable program requirements that apply equally to all HHS contractors and grantees,” asserted AU. “Policies like those that bar discrimination are a vital component of HHS-funded programs because they advance equality and fairness and ensure everyone has access to the services they need.” AU also joined 44 allies in the Coalition Against Religious Discrimination to submit objections.
These policy considerations aren’t the only ways in which the Trump administration has signaled its contempt for the LGBTQ community. In February, DOJ and the Department of Education revoked Obama-era guidance that clarified for public schools that a federal law known as Title IX protects transgender students’ right to use restrooms consistent with their gender identity.
On July 26, Trump took to Twitter to announce he would ban transgender troops from the military. The same day, DOJ filed a legal brief arguing federal law does not make it illegal to fire an employee based on sexual orientation. DOJ filed another brief in September before the U.S. Supreme Court in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, siding with a baker who claimed a religious right to refuse to bake a wedding cake for a same-sex couple and against the Colorado agency which had backed the men. And in October, DOJ issued a memo stating it does not believe the landmark Title VII civil rights law protects transgender employees from workplace discrimination.
Americans United has pushed back against the view that employers and schools can use religion as an excuse to discriminate against the LGBTQ community. AU filed friend-of-the-court briefs in support of transgender people, including Gavin Grimm, the Virginia teenager fighting for the right to use an appropriate school restroom, and Aimee Stephens, a transgender employee fired by a Michigan funeral home. AU also filed a brief in the Masterpiece case, urging the Supreme Court to recognize that religion does not give businesses (or other employers) the right to discriminate.
Trump’s Muslim Ban
Standing up for LGBTQ rights isn’t the only issue in which AU has sided against the Trump administration before the Supreme Court in the last year: Americans United also has been fighting against Trump’s Muslim ban.
A scant week after the inauguration, Trump issued the first of three orders banning immigrants and travelers from several Muslim-majority countries. The hasty nature of the Jan. 27 executive order triggered confusion and outrage across the nation as people in transit when Trump’s order was signed were detained and threatened with deportation by immigration officials. Protesters descended on the airports, as did attorneys volunteering to help – including one of AU’s legal fellows, Bradley Girard.
Lawsuits were filed almost immediately, and AU joined the legal fight days later by submitting the first of many friend-of-the-court briefs asserting the ban violated the Constitution by singling out a group of people solely because of their religious beliefs. AU attorneys traveled to a federal court in Seattle on Feb. 2 to support the plaintiffs in Washington v. Trump, one of the lawsuits that blocked the first Muslim ban from going into effect.
After Trump issued his second Muslim ban in March, AU and its allies, Muslim Advocates, the Southern Poverty Law Center and the law firm Arnold & Porter Kaye Scholer, responded by filing Universal Muslim Association of America v. Trump. The lawsuit sought justice for Muslim Americans seeking to worship with religious scholars who were denied entry to the country, and for a Yemeni family blocked from acquiring U.S. visas for two of their young children stranded overseas.
While two lawsuits challenging the ban were awaiting Supreme Court review, the high court in late June allowed the Muslim ban to partially go into effect. The Supreme Court had intended to hear arguments on those two cases – Trump v. Hawaii and Trump v. International Refugee Assistance Project – in October (AU had submitted friend-of-the-court briefs in those cases, including before the Supreme Court), but the 90-day ban expired in late September, and the high court dismissed the cases.
Trump issued a new, permanent Muslim Ban 3.0 on Sept. 24. Although the new ban includes travel restrictions on North Koreans and on Venezuelan government officials, AU and other critics have noted Muslims are still the primary target of the ban. That’s why AU and allies at Muslim Advocates and the law firm Covington & Burling filed Iranian Alliances Across Borders v. Trump on Oct. 2 – the first lawsuit to challenge Muslim Ban 3.0. The plaintiffs include six individuals, all of whom are U.S. citizens or lawful permanent residents with relatives who are blocked from coming to the U.S. by the ban, and IAAB, a nonprofit that serves the Iranian American community.
At Church & State’s press time, decisions on whether to block the Muslim ban were pending in two federal appeals courts in four cases, including AU’s IAAB v. Trump. The Supreme Court had allowed the ban to go into effect on Dec. 4 while the appeals proceeded. Regardless of the outcome in the appeals courts, the Muslim ban is expected to end up on the high court’s docket once again.
Church Politicking And The Johnson Amendment
Also pending at press time was congressional action on one of Trump’s pet peeves: the Johnson Amendment, the provision of federal law that protects the integrity of our elections and of tax-exempt organizations, including houses of worship, by ensuring nonprofits don’t endorse or oppose political candidates.
Trump has repeatedly spoken out against the Johnson Amendment ever since some faith leaders told him it was why they wouldn’t endorse him. In one of his first public speeches as president – at the National Prayer Breakfast on Feb. 2 – Trump promised to “get rid of and totally destroy the Johnson Amendment.” He continued making similar threats throughout the year, including in his May executive order. But the president alone can’t change the law – for that he needs Congress.
Some GOP members of the House are trying to oblige him. In September, the House approved a general spending bill that includes language that would make it extremely unlikely the Internal Revenue Service could investigate any potential violations of the Johnson Amendment. The Senate’s proposed spending bill did not include similar language, but it had not yet been approved at press time.
The House also approved language in its version of the tax bill that would essentially repeal the Johnson Amendment. The Senate’s version did not include similar language. The two bills were being reconciled at press time to work out a compromise.
Americans United and allies worked throughout the year to mobilize the public – the vast majority of whom support the Johnson Amendment’s protections, according to multiple opinion polls. AU members participated in action alerts and visited the district offices of their representatives to voice support for the current law. In May, AU helped to launch Faith Voices, a campaign of faith leaders who don’t want their houses of worship divided by and turned into tools of political campaigns. As a result, more than 4,300 faith leaders signed a letter supporting the Johnson Amendment, which AU helped to deliver to Congress in August. AU also joined charitable organizations in sending many letters to lawmakers to show the nonprofit sector’s support for the law.
Private School Voucher Schemes
Congress’ pending tax bills also included language that would expand a private school voucher-like program. Republicans want to transform 529 college savings plans into a program that would give tax breaks to parents who set aside tuition money for K-12 education at private, mostly religious schools. The proposal was included in both the House and Senate versions of the bill.
If approved, it could be just the tip of the iceberg aimed at expanding federally funded voucher schemes that Trump and his education secretary, Betsy DeVos, are promoting. On the campaign trail, Trump pitched the idea of diverting $20 billion in taxpayer funds away from public education and using it for vouchers and related programs. The education budget he introduced in March and further outlined in May would make a down payment on that idea by funneling $250 million of taxpayer dollars into a private school voucher program – all the while cutting the overall education budget by 13.5 percent.
In congressional hearings on the budget, DeVos repeatedly refused to assure legislators that any federally funded voucher program would protect students’ civil rights by ensuring that students with disabilities receive federally required services and by protecting students from LGBTQ families from discrimination. It is one of the many critiques that AU, the National Coalition for Public Education (NCPE) that AU co-chairs, and many other advocates for public education have voiced in opposition to the Trump-DeVos voucher plan. Education advocates have also pointed to voucher programs’ lack of accountability, the multitude of studies that show these schemes rarely improve and often harm students’ academic achievement, and the way they violate religious freedom because they compel taxpayers to fund predominantly religious private schools.
Nonetheless, DeVos’s Department of Education in October drafted a strategic plan that makes vouchers one of her department’s top priorities. AU formally commented on the plan: “We oppose private school vouchers because they divert public dollars to fund predominantly religious schools, fail to provide students with better educational outcomes, deny students’ civil rights and constitutional protections, and lack accountability to taxpayers.” AU also joined 50 organizations in NCPE comments that objected to the department’s prioritization of vouchers: “The government would better serve our children by using funds to make our public schools stronger.”
Attacks on public education, the Johnson Amendment, the rights of Muslims, women and the LGBTQ community are some of the more notable ways Trump and his administration have marked his first year in office. Trump’s judicial nominees are another concern. Some Trump nominees have been rated “unqualified” by the American Bar Association and accused of having thin legal resumes.
Trump put arch-conservative Neil Gorsuch on the Supreme Court, and some of his lower court appointees hold troubling views on religious freedom. Concerns were raised that one nominee, Amy Coney Barrett, a law professor at Notre Dame Law School, might elevate her far-right Catholic views above the law.
Nevertheless, Barrett was confirmed for a seat on the 7th U.S. Circuit Court of Appeals.
There’s little doubt that under Trump, more assaults on church-state separation are to come.
But the resistance to Trump’s policies has also had noteworthy moments in the courts, on Capitol Hill and at the polls. Many political commentators called progressive victories in November’s state and local races a referendum on Trump and a sign of trouble for his policies in the 2018 mid-term elections.
“The Democrats’ surprise sweep in the Nov. 7 off-year elections wasn’t just a major victory for the party,” wrote Charlotte Alter in Time magazine. “It was a triumph months in the making for a network of progressive groups that did not even exist a year ago, but have been toiling to train candidates, boost turnout and energize activists in state and local races.”
Brent Budowsky, a political columnist and former Democratic congressional aide, wrote in The Hill: “Big picture, the damage Trump does to the Republican Party is that he polarizes, emotionalizes and energizes the huge number of voters who thoroughly detest what Trump is doing to America, or merely disapprove what Trump is doing to America sufficiently enough to inspire them to vote.
“What happened across the nation in the 2017 elections is that the powerful majority of voters opposed to Trump, from the top of the ticket to the bottom, journeyed to the polls to cast their votes for a vision of America that is better, nobler and stronger than what Trump Republicans offered on Election Day 2016,” he continued.
If you’re looking for the half-full glass, there it is.