Why President Trump's Religious Liberty Executive Order Is Good News for America's Military
On May 4, 2017, the National Day of Prayer, President Trump issued a customary presidential proclamation celebrating the occasion. The President also issued an Executive Order Promoting Free Speech and Religious Liberty. In clear, unequivocal terms, President Trump declared that his administration will “vigorously enforce Federal law’s robust protections for religious liberty.” The executive order received mixed reactions from the media, pundits, and policy wonks. Many critics of the order complained it did not go far enough. By their very nature, however, executive orders are necessarily limited in reach and scope. But make no mistake, the relatively few things President Trump’s executive order does are significant and will positively affect millions of Americans. Among those, perhaps the largest group of Americans likely to benefit is the military.
Section 4 of the order directs the Attorney General to “issue guidance interpreting religious liberty protections in Federal law.” In other words, President Trump instructed and authorized the Attorney General to ensure all the other agencies within the federal government act consistent with the Administration’s religious liberty policy. This is necessary because, in the words of Supreme Court Justice Clarence Thomas, the manner in which the First Amendment is interpreted is “in shambles,” and is often “anyone’s guess.” The same can be said of the religious liberty protections found in federal law.
The Religious Freedom Restoration Act (RFRA) is an example of a federal religious liberty law that has been, at times, subject to varying interpretations by various federal agencies. Although it won’t solve every problem, President Trump’s executive order can certainly provide much needed guidance about how RFRA is to be interpreted and implemented within the federal government. Such guidance is necessary in the area of religious liberty because of the potential for confusion and misinformation when it comes to our rights. The Department of Defense (DoD)—the federal agency with the most employees—is perhaps the agency that stands to gain the most from Section 4’s clarifying guidance.
My law firm, First Liberty Institute, represents numerous service members who are victims of religious hostility in the military. As a veteran myself, I am convinced that the vast majority of our military leaders are honest people who sincerely want to do what is right. Thus, more often than not, the root cause of religious hostility within the military is the lack of clear guidance on the religious liberty protection our service members enjoy. Anyone serving in uniform will quickly tell you that our service members voluntarily give up many liberties in order to serve. But sadly, many of those service members do not know that there are multiple federal laws, including RFRA, as well as DoD regulations that protect religious liberty in the military. Compounding this problem is the fact that there are other DoD regulations that appear to contradict the laws and regulations that protect religious freedom.
In fact, the DoD regulation that directly addresses religious accommodations, DoD Instruction 1300.17, actually interprets religious liberty protections in a manner that is completely at odds with the First Amendment. Thus, it may come as no surprise that during President Obama’s tenure as Commander-in-Chief, the Pentagon’s record on religious liberty wasn’t exactly stellar. Examples of this include cases in which the Army took action against a chaplain when someone complained about his reference to faith and spiritual resiliency during a suicide prevention training class. In another case, uniformed members of the Air Force physically assaulted and forcibly removed a retired Airman because he was going to mention the word “God” during a flag folding ceremony.
The common thread in nearly every one of our military cases is that those in authority have received little or no training and guidance on religious liberty and how to avoid violating the Constitution. That’s why President Trump’s executive order should offer hope to all Americans who value religious freedom. No longer will government officials be left to their own devices when it comes to the Gordian knot that is the First Amendment. Now, under Section 4 of the executive order, the DoD—and all other federal agencies—must apply RFRA and other religious liberty protections in a manner consistent with how the Department of Justice directs.
Perhaps it is fitting that President Trump waited until May to sign this executive order. After all, May is Military Appreciation Month, culminating with Armed Forces Day and Memorial Day at the end of the month. I can think of no better way of honoring our service members and veterans than by declaring that it is the official policy of our government to vigorously protect their religious freedom.