Trump's Constitutional Triad: Speech, Conscience, and Family

The first couple weeks of the new Trump administration have been incredibly promising for repairing the damage to religious freedom and conscience rights inflicted by the Biden administration. 

Take, for example, the numerous executive orders President Trump signed during his first days. A surprising number of those orders undo the weaponization of the federal government to push gender ideology – a progressive assault on the nature of what it means to be human that is at odds with biological reality and traditional religious belief. 

This assault was sweepingly ambitious in its aims, undermining the human freedoms that, as the framers of the United States Constitution understood, naturally cluster together: freedom of speech, religious liberty, and the freedom of parents to educate their children by their beliefs. The Constitution places a heavy burden on the government to respect the consciences of religious believers. Surrounding these elements is the notion of natural rights that undergirds the American constitutional order: reason, logic, and truth exist, giving us the capacity to know what is essential as a matter of constitutional citizenship. We may not agree on every right, but the freedom of religion, speech, and the basic rights of families deserve a wide berth if we are to remain a free republic. At the same time, the rights of governments and citizens are circumscribed by common law and common sense: no one is free to cause harm to children or other vulnerable individuals under extremist beliefs, be they religious, secular, or some combination of the two.

At the root of gender ideology lies the notion that an individual's sex is determined by preference rather than biology. This anti-scientific doctrine should be distinguished from the freedom of a tiny minority of adults suffering from gender dysphoria to present themselves as members of the opposite sex. Gender ideology proposes that "transition" from one "gender identity" to another constitutes an ontological change in an individual's sex. It is a quasi-religious fantasy that might be covered by freedom of expression if it were confined to harmless cultic activities.

The troubling reality, however, is the embrace of this inflexible ideology by groups whose infiltration of the federal government and other public bodies, including a vast range of educational establishments, peaked during the Biden administration. As a result, gender ideology proponents were free to perform mutilating medical experiments on children caught up in the "trans" craze. At the same time, there was an attempt to suppress the views of anyone who noted that gender ideology mandates violations of conscience, nature, and common sense.

The second Trump administration, taking office after four years in which the federal government and its allies attempted to enforce gender ideology in healthcare, education, and sports, recognizes the urgent imperative to reverse these disastrous initiatives.

“Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government,” signed on January 20, pledges that the Trump administration will “defend women’s rights and protect freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.” Clear directives were given to the Department of Health and Human Services heads, Homeland Security and Housing and Urban Development, and the Attorney General.

Among the directives in the order are that the Attorney General and Secretary of Homeland Security ensure that “males are not detained in women’s prisons or housed in women’s detention centers.” As Eric Kniffin of the Ethics and Public Policy Center and I pointed out in a commentary piece last summer, the Biden administration’s obsession with gender ideology exposes incarcerated women to a host of horrors. 

The order also mandates rescinding a long list of “guidance documents,” showing the extent of the administrative state’s enforcement of gender ideology under Biden. For example, the “non-partisan” Equal Employment Opportunity Commission finalized enforcement guidance last year to all covered employers in the country, defining the failure to use “preferred pronouns” as a form of workplace sexual harassment. As I argued then, the guidance did not allow religious accommodation for employers or employees. 

Speaking of freedom of speech, another executive order issued on Day One, “Restoring Freedom of Speech and Ending Federal Censorship,” reaffirmed the administration’s commitment to the guarantees of the First Amendment. It said that using the term “misinformation” to advance the government’s preferred narrative on various issues was odious to free speech.  

In an unexpected follow-up on January 28, the executive order “Protecting Children from Chemical and Surgical Mutilation,” withholds federal funding or other federal support for chemical and surgical mutilation of children and requires HHS to encourage instead practices that will “improve the health of minors with gender dysphoria, rapid-onset gender dysphoria, or other identity-based confusion, or who otherwise seek chemical or surgical mutilation.” 

In a nod to medical conscience rights, the order specifically directs the Attorney General to issue guidance to protect whistleblowers. As I explained in a pre-inauguration video, such guidance would ensure that the Department of Justice will no longer undertake prosecutorial witch hunts like the one that targeted Dr. Eithan Haim, a Texas doctor who denounced medical interventions on children with gender dysphoria in violation of state law prohibiting them. The Trump Department of Justice has since dismissed the case against Haim. 

The DOJ is also directed “to investigate and take appropriate action” to end the stripping of custody from parents who “support the healthy development of their children” by “so-called Sanctuary states.” 

In an executive order, “Enforcing the Hyde Amendment,” signed on January 25^th, President Trump reaffirmed the federal government’s commitment to comply with the Hyde Amendment, which prohibits the use of any federal funds for elective abortions. The move also revoked two executive orders from the Biden administration that expanded access to abortion. Three days later, he revoked the presidential memorandum issued by the Biden administration that authorized taxpayer funding to abortion providers and reinstated a directive from his first administration re-establishing the Mexico City Policy. This policy prevents foreign organizations that receive U.S. government aid from providing or promoting abortion services in their country.

President Trump’s defense of the unborn also includes vindicating those whose religious convictions found them in the cross-hairs of the Biden administration. He pardoned 26 pro-life protestors who were prosecuted under the Freedom of Access to Clinic Entrances Act (FACE Act). Trump’s DOJ has also directed prosecutors to enforce the FACE Act only in “extraordinary circumstances” – such as when death, extreme bodily harm, or significant property damage occurs during an act against a “reproductive health care” facility. In the future, violations of the FACE Act are to be enforced at the state or local level unless “significant aggravating factors” exist. 

This directive is missing, however, any reference to enforcement of the FACE Act for vandalism of churches and pregnancy resource centers (both are covered entities under FACE). The Biden administration ignored this authority despite the vandalization of over 300 Catholic churches since the leak of the Supreme Court’s decision overturning Roe v. Wade.  

Parents of school-aged children should be hopeful in light of two other executive orders issued on January 29. The first, “Ending Radical Indoctrination in K-12 Schooling,” threatens to withdraw federal funding to any school that continues to indoctrinate its students in Critical Race Theory and Gender Ideology. The second, “Expanding Educational Freedom and Opportunities for Families,” announces the Trump administration’s support of school choice initiatives. Operation of the order must incorporate religious freedom protections so that the countless faith-based schools across the country can be among the choices available to parents. 

And last, President Trump issued “Eradicating Anti-Christian Bias” on February 6. The order is a much-needed “all-hands-on-deck” mandate for the federal government. The Biden administration’s treatment of Christians was, to put it mildly, deplorable. It ignored the vandalism of Catholic churches, tried to muzzle Christians faithful to traditional religious teaching on marriage, sexuality, and what it means to be human, and even imprisoned those priests and other Christians who peacefully protested at abortion facilities in defense of vulnerable pregnant women and their unborn children.

The anti-Christian bias order rightly called out the Biden Department of Health and Human Services’ effort to “drive Christians who do not conform to certain beliefs on sexual orientation and gender identity out of the foster-care system.” A rule enacted by the Biden administration directs states to restrict the fostering of children who identify as LGBTQ+ to those families unwilling to affirm gender ideology. As there are not enough loving foster homes available for the over 350,000 children in America in need, adding such conditions will exclude many potential foster parents with traditional religious beliefs from service.

In addition to these executive orders, several cabinet-level appointees have committed to safeguarding religious liberty. During her Senate confirmation hearing, for example, Pam Bondi vowed to end the weaponization of the DOJ. “Justice will be administered evenhandedly throughout this country,” she promised. In response to questioning by Senator Josh Hawley (R-MO), Bondi assured the Senate Judiciary Committee that the DOJ would protect churches and pregnancy centers from violence and intimidation, end the disparate treatment of Americans of faith, the persecution of pro-lifers, and prevent the FBI from spying on traditional Catholics or other Christians. 

Another key concern for Bondi’s DOJ is its role in cases before the Supreme Court. The Biden administration was either conspicuously absent from religious freedom and free speech cases over the past four years or took an anti-freedom posture. It appears that Trump’s Solicitor General’s office is already prepared to turn the tide. In a short letter to the Supreme Court clerk, the office repudiated the Biden administration’s position in United States v. Skrmetti that a Tennessee law that bars health-care providers from administering puberty blockers and cross-sex hormones to children as treatment for gender dysphoria violates the Equal Protection Clause. Still to be seen is whether D. John Sauer – Trump’s nominee for Solicitor General – will take a position in any of the religion cases on the Supreme Court’s docket this term or any of the other key religious freedom cases before the lower courts of appeal.  Insight from the Trump administration will impact the Court as it reviews cases involving religious social service programs, parental rights in public schools, and fairness in charter school programs.

Of course, the second Trump administration is still in its honeymoon period, and important matters still need to be addressed. But the future of religious liberty and other constitutional rights in America has changed for the better.

Andrea Picciotti-Bayer is Director of the Conscience Project.