Will Freedom Survive?

Will Freedom Survive?

“Build Back Better.” It’s the campaign slogan President Joe Biden adopted to elicit confidence, promise recovery and inspire hope. While the new administration says it will prioritize economic recovery and public health, the Biden team has also promised other sorts of change. Unfortunately, the president’s plans are likely to threaten Americans’ constitutional freedoms in ways that don’t “build” us up or leave us “better” off. Here, we’ll primarily review the new administration’s attitudes toward our First Amendment freedoms, especially religious liberty.

As Justice Samuel Alito recently noted, “It pains me to say this, but in some quarters religious liberty is fast becoming a disfavored right.” This disfavor might not come from deliberate hostility toward people of faith, but that hardly makes it less problematic. As we look at the new administration’s posture toward religious liberty, we’ll review President Biden’s personnel choices, promised executive orders, intended legislative priorities and goals for the judicial branch. 

Predicting a president’s track record so early in his term has its challenges. As candidates, Joe Biden and Kamala Harris took pains to emphasize their personal respect for religion—a respect that could temper their policy goals. Given our effort to emerge from the COVID-19 pandemic, the administration’s focus may be distracted from some of its intended goals. Also, Alliance Defending Freedom (ADF) and our allies will be working to help ensure that our worst predictions don’t become reality. But the unfortunate truth remains: The Biden administration has promised actions that threaten religious liberty. Even before his inauguration, Biden had already begun to select senior advisors with a proven record of disrespect and disregard for our fundamental freedoms. 

It’s often noted that personnel is policy. We saw early signs of the Biden administration’s commitment to progressive goals that sideline religious liberty within the president and vice president’s transition teams. Even these short-term roles “reflect the values and priorities of the incoming administration.” 

Here are a few individuals the Biden administration has tapped to facilitate the transfer of power and policy from the Trump administration. Richard Stengel, a former editor of Time magazine, leads the transition team for the U.S. Agency for Global Media. Despite years of serving in a role that should respect free speech, Stengel wrote a Washington Post op-ed in 2019 questioning the value of the First Amendment and arguing that America needs “hate speech” laws—laws that European countries have used to censor disagreement and punish Christian convictions over matters of human dignity and sexuality. 

Barbara McQuade, a senior attorney on the Department of Justice transition committee, falsely argued that then-Supreme Court nominee Judge Amy Coney Barrett had an “inability [to] set aside her own moral convictions” as a judge. 

Chris Lu, the head of the transition’s Department of Labor team, served as President Obama’s deputy secretary of labor and established federal regulations making gender identity and sexual orientation protected categories—a policy that paints people of orthodox Judeo-Christian faith as akin to racists.

Meanwhile, Health and Human Services team lead Chiquita Brooks-LaSure served as spokesperson defending the Obama administration’s illegal contraceptive mandate—an issue that resulted in a case ADF litigated all the way to the U.S. Supreme Court.

The Biden team has selected Neera Tanden, president of the Center for American Progress, to head the Office of Management and Budget—an agency that wields great influence over the administration’s fiscal priorities. Described by some as an “enemy of religious liberty,” her aggressive leftist partisanship poses challenges for anyone who prioritizes freedom of conscience. Tanden served a key role in crafting the Affordable Care Act and championed its mandate that businesses and nonprofits violate their ethical and religious concerns and include abortion-inducing drugs and sterilization in their health care plans. 

Perhaps the Biden administration’s most concerning personnel selection so far is Xavier Becerra, tapped to head the Department of Health and Human Services. Unfortunately, ADF knows him best for his role as attorney general of California, where he led the crusade to force religious, pro-life pregnancy centers to provide free advertising for the abortion industry. ADF made the case that no one should be forced to advertise for abortion—least of all people who give moms the material resources and emotional support they need to choose life for their unborn children. Thankfully, the U.S. Supreme Court acknowledged that “the people lose when the government is the one deciding which ideas should prevail,” and ruled in favor of the people. 

For years, Becerra has aggressively led the charge to silence and prosecute David Daleiden, the pro-life investigative journalist who exposed Planned Parenthood’s unethical and illegal medical and research practices, including the buying and selling of fetal tissue. Becerra has also been an outspoken advocate for the so-called Equality Act and other similar measures that prioritize sexual orientation and gender identity, and garnered effusive support from both pro-abortion and LGBTQ+ advocacy groups. Should he be confirmed, Becerra’s leadership at HHS will likely lead to another round of attacks against people of faith—pressuring Americans to pay for or even perform procedures that violate their deeply held convictions. 

President Biden has promised to reverse numerous religious liberty protections enacted by the Trump administration. He plans to use the executive branch to support a pro-abortion agenda and reinterpret civil rights laws to force people of faith and nonprofit organizations to abandon or suppress their beliefs about marriage and sexuality. Pro-abortion activists have also demanded that Biden rescind an executive order that prevents Title X federal funds from being used to pay for abortion. Additionally, during the campaign, Biden notably abandoned his previous, longstanding support for the Hyde Amendment, now promising to use Americans’ tax dollars to directly fund abortions. He’s also promised to reverse the Mexico City Policy, which forbids U.S. federal funding of foreign non-governmental organizations that promote or provide abortion.

We can expect the Biden administration to reinstate the Obama-era regulations requiring most health plans to include “sex reassignment,” in violation of the religious convictions and medical ethics held by many Americans. It’s also likely that the Biden administration will reverse Trump-era regulations that protect religious organizations from being forced to give up their religious character or beliefs in order to partner with the government in providing public benefits like housing, foster care placement, or job training. Further, Biden promised to reverse Trump administration actions taken by the Departments of Education and Justice, and force public schools to open girls’ locker rooms and athletics to boys who identify as girls. While he might not intend to regulate Americans’ freedoms away, President Biden’s threatened executive actions will likely culminate in the restricting of religious liberty, and the censoring and sidelining of religious people in public life. 

Although the legislative branch is outside the White House’s direct control, the executive branch often exerts a great deal of influence over its neighbors on Capitol Hill. As a candidate, Biden promised to prioritize passage of the Equality Act. As we’ve written in this publication before, this legislation poses numerous serious harms to a variety of American citizens. The bill’s title is deceptive. It’s not “equality” to establish policies that discriminate against people of faith, force religious organizations to hire people who don’t share their convictions, and cause direct harm to women and girls. By adding “sexual orientation” and “gender identity” to the list of protected classes in federal law, the Equality Act prioritizes fluid ideas of identity over the God-designed and immutable reality of being made female or male.  

If Biden signs the Equality Act into law, we can expect to see more frequent conflicts between the government and anyone who holds to millennia-old beliefs about marriage and family. We’ll see more lawsuits like those involving cake artist Jack Phillips, floral artist Barronelle Stutzman, T-shirt designer Blaine Adamson and adoption provider New Hope Family Services. The bill could force women and girls to share intimate spaces with men who believe they are women. Similar laws and policies have already been used to justify male participation in—and domination of—high school girls’ and college women’s athletics. “Equality” sounds like a good idea, until it’s weaponized to punish religious convictions or to force us to ignore biological reality, resulting in treating females and people of faith unequally. 

A president also nominates federal judges for district, circuit and U.S. Supreme Court vacancies. Unfortunately, we can expect President Biden to follow through on his intentions to select judicial nominees based, in part, on their personal commitment to protecting Roe v. Wade. During the campaign, he also highlighted his previous opposition to nominees who apply the law as written. 

Progressives have been clamoring to pack the Supreme Court with their own policy allies, and Biden refused to promise that he’ll preserve the integrity of the nation’s highest court. Considering these potential threats, the U.S. Senate serves as an important check against the increased politicization of the judicial branch. Americans count on judges who will interpret the law as written; unfortunately, it may fall to the Senate to prevent confirming judges with a history of judicial policymaking. 

Perhaps these predictions sound dire or overblown. Unfortunately, Biden and his team seem to hold a fundamentally flawed set of priorities that will restrict religious liberty when it competes in any way with progressive orthodoxy on sexual expression and abortion. That’s bad news for Americans. The good news is that law firms like ADF exist to help stand in the gap. We will keep working to shape or fight regulations. We will keep educating legislators in the House and Senate. We will continue to encourage the American public to treasure our first freedoms. Where needed, we will litigate to defend Americans against the Biden administration’s violations of their constitutional freedoms. 

The even better news is that our God is still King. He’s not sleeping, surprised or overwhelmed by any threats to His people’s freedoms. This sovereign King holds leaders’ hearts in His hand and directs them “like streams of water” (Proverbs 21:1). Therefore, we pray, write, speak out and even litigate for a better, more just and freer country—one where citizens can freely seek truth and live out the implications of their beliefs. We work and wait in confidence that the King will reward our faithfulness and make all things right, in His time. ©2020 Kristen K. Waggoner and Jessica Prol Smith  


Kristen K. Waggoner serves as general counsel for Alliance Defending Freedom. Jessica Prol Smith serves as senior news writer and editor.

Above: Kristen Waggoner addresses supporters outside the U.S. Supreme Court on Dec. 5, 2017, the day of oral arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Photo: Courtesy of Alliance Defending Freedom

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