Pence Punts on Religious Liberty: “The Courts Sort Out Those Issues…”

Indiana Gov. Mike Pence (photo credit: Gage Skidmore)
Indiana Gov. Mike Pence (photo credit: Gage Skidmore)

Earlier this week, I wrote about Mike Pence’s complicated past history on religious liberty and argued that he had two choices before him on the issue: take a strong stand or retreat back to ambiguity.

While Pence was not asked to address the topic during Tuesday’s debate, he was presented with several questions on social issues during an appearance on Dr. James Dobson’s “Family Talk” radio program yesterday. Unfortunately, Trump’s VP pick showed little willingness to defend a robust vision of religious liberty beyond a number of weak platitudes.

First, Pence was asked by Dobson how a hypothetical Trump administration would approach President Obama’s infamous contraception mandate, which has been challenged in two high-profile Supreme Court cases featuring Hobby Lobby and the Little Sisters of the Poor:

What I can tell you is that a Trump-Pence administration will be dedicated to preserving the liberties of our people, including the freedom of religion that’s enshrined in our Bill of Rights. … We have a long tradition in this country of accommodating religious belief and respecting religious belief. But under this administration, you’ve seen the heavy hand of government — whether it be in the Hobby Lobby case, or whether it be in the Little Sisters of the Poor [case] — where there’s an unwillingness by the administration to accommodate the religious sensibilities and convictions of ministries or private organizations. And the question of non-profits that you raise in this case is equally relevant.

But our administration is going to err on the side of freedom. We’re going to err on the side of protecting the liberties our people. But it does underscore how important this election is with regard to the Supreme Court of the United States. With the passing of the late and great Antonin Scalia, literally the balance of the Court on many of these very closely decided questions is on the ballot this year. And what I can tell you is that Donald Trump is absolutely committed to appointing justices to the Supreme Court, and all of our courts, in the tradition of the late and great Justice Antonin Scalia — people who will strictly construe the Constitution of the United States.

I couldn’t be more proud to stand with him in that.

Pence’s answer is not a terrible one, but it does raise an interesting question: why did he not specifically vow to do away with Obama’s contraception mandate? Why did he instead resort to what amounted to a lengthy non-answer on a relatively easy question?

Furthermore, the same noteworthy avoidance of specificity can also be discerned in Pence’s other two answers. First, he was asked for his thoughts about the Obama administration’s guidance letter on “gender identity”:

You know, this is such an example of an administration that seems to have — there’s no area of our lives too small for them to want to regulate. No aspect of our Constitution too large for them to be willing to ignore. These questions that come up — Donald Trump and I both believe not only can be resolved with common sense at the local level, but they are every single day, working with parents and administrators and teachers. These issues, I can tell you, are resolved in the state of Indiana whenever they come up. And they should be resolved with the safety and well-being of our children first and foremost — their privacy interests and rights — and with common sense.

Donald Trump and I simply believe that all of these issues are best resolved at the state level by the people of communities, by the standards that they want to set…

Washington has no business intruding on the operation of our local schools. I can tell you, it’s just one more example of the heavy hand and liberal agenda of this administration working its way into the purview of the states and the people. And Donald Trump and I will stand by that common sense principle that government that governs least governs best, and that when it comes to our kids and the operation of our schools, that those decisions should be made and can be made at the local level.

And find ways to accommodate all of our kids. Free public education, universal public education is a principle actually enshrined in the Indiana Constitution. And it’s a principle we cherish all across this country. We’ll educate all of our kids; we’ll figure a way through all of these issues. But Washington D.C. has no business imposing its will or its values on communities around the nation.

And finally, Pence was asked whether religious liberty would be a priority for a Trump-Pence administration:

I can assure you that a Trump-Pence administration is going to uphold the Constitution of the United States. The First Amendment of the Constitution is very clear. Congress shall make no law regarding the establishment of religion or prohibiting the free exercise thereof…

We live in a diverse country, with people with different viewpoints and different lifestyles. And I don’t believe in discrimination or mistreatment of anyone. I believe we should love our neighbor as ourself. But neither do I think that anyone should fear persecution because of their deeply held religious beliefs.

Now when those two things come into conflict, that’s what we have the courts for. The courts sort out those issues and have done so throughout the history of this nation. And Donald Trump and I truly believe that ensuring we have people appointed to the court who will respect our Constitution and respect the God-given liberties enshrined there is very much on the ballot…

Notice in all of these answers that Pence speaks about general principles but not about specific solutions. And his answer to the third question, in particular, raises issues due to the fact that the courts have been very hostile to religious liberty, a trend that is not likely to abate significantly during a Trump presidency. (See Michael Lucchese’s post from August for a full critique of this position.)

Conservative voters whose confidence in Pence was shaken by his poor handling of the Indiana RFRA controversy have been waiting for the Indiana governor to prove he has grown a backbone on the issue. Interviews such as this one are not likely to reassure them.

Paul Dupont is the managing editor for