A leaked copy of a draft executive order titled “Establishing a Government-Wide Initiative to Respect Religious Freedom,” signals sweeping plans by the Trump administration to legalize discrimination, even by private companies and religious organizations. The draft order cites religious belief as grounds for its broad application: “Americans and their religious organizations will not be coerced by the Federal Government into participating in activities that violate their conscience.” President Donald Trump may reveal the order or some version of it at the National Prayer Breakfast currently underway.
The draft order takes direct aim at the LGBT community, effectively nullifying many if not most of their existing protections. Earlier this week, the White House announced there were no plans to repeal President Barack Obama’s executive order protecting federal contractors from anti-LGBT discrimination. But Ira Lupu, professor emeritus at George Washington University Law School and an expert on the Constitution’s religion clauses and on the 1993 Religious Freedom Restoration Act (RFRA), notes that the draft order’s language “privileges” certain beliefs about sexual orientation and sexual identity that identified most closely with conservative Catholics and evangelicals. That, he points out, oversteps what existing law such as RFRA (the Religious Freedom and Restoration Act) might authorize, and it may violate the Establishment Clause of the Constitution.
For example, Lupu points out, the draft’s language would appear to permit federal employees at the Social Security Administration or Veterans Administration “to refuse on religious grounds to process applications or respond to questions from those whose benefits depend on same sex marriages.” It would fall on other employees to “fill the gap.” But if they do not, the order would create a situation “where marriage equality was being de facto undermined by federal employees, especially in religiously conservative communities,” contrary to the Supreme Court ruling in Obergefell v. Hodges.
While President Trump does not intend to repeal Obama’s executive order covering federal contractor employees, the new order as drafted would expressly supercede it. “The provisions of this order shall prevail in cases of conflict with any existing executive order and with any future executive order unless such future order explicitly refers to, and limited or excludes, the application of this order,” the text reads. “All agencies shall promptly withdraw or rescind any rulings, directives, regulations, guidance, positions, or interpretations that are inconsistent with this order to the extent of their inconsistency.”
According to Jenny Pizer, senior counsel and law and policy director for Lambda Legal, the language in the draft order mirrors language in a law passed last year in Mississippi. That measure, House Bill 1523, or the “Protecting Freedom of Conscience from Government Discrimination Act,” allows individuals, businesses and government employees (including counseling services, foster care and adoption services), nonprofits and other entities to refuse goods and services to LGBT people and anyone who has had extramarital sex on religious grounds. The bill also defines “male” and “female” as someone’s “immutable biological sex as objectively determined by anatomy and genetics at time of birth,” protecting those who decline to perform treatments, surgeries and counseling related to sex reassignment or gender and identity transitioning. HB 1523 prohibits the government from taking action against individuals and faith-based institutions who act according to their “religious convictions.”
A federal district court already has ruled that HB 1523 violates both the Establishment Clause and the Equal Protection Clause, and Pizer foresees similar legal challenges ahead for any similar executive order. In this case, the draft order lists a “particular set of religious beliefs” thereby “giving special government protection to people who hold those beliefs as opposed to different beliefs.”
Moreover, she continued, the order’s language comprises “a license to discriminate with public money in a series of contexts in which people tend to be vulnerable,” such as against LGBT children in the foster care system, which is federally funded. The order would allow organizations receiving federal grants or contracts to provide child welfare services to refuse both necessary care or even to “refer the child to another agency or setting that would be protective and affirming and instead place the child in an environment that is aggressively hostile to who that child is, on religious grounds.”
The four-page draft order would allow wholesale exemptions for people and or organizations to cite religious objections to not only same-sex marriage and gender identity, but premarital sex and abortion, as grounds for otherwise discriminatory action. Notably, the draft order broadly covers “any organization, including closely held for-profit corporations”–thus encompassing almost every small business in America and several large, private corporations. The order ostensibly protects so-called “religious freedom” in every respect when “providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.”
The order would also on its face operate to curtail a woman’s access to contraception and abortion through the Affordable Act, and it would allow churches and charitable organizations to make political statements without losing their tax exemption status if the group “believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”
Section 4 of the order, titled “Specific Agency Responsibilities,” requires the Department of Health and Human Services (HHS) to issue a rule exempting persons and organizations citing religious objections from complying with the Affordable Care Act’s preventive-care mandate, which includes contraceptive coverage. Under the order, the HHS would be required to provide individuals purchasing a plan through the healthcare exchange with the option to purchase a plan which does not cover abortions or subsidize plans which do provide abortion coverage. The HHS would also lose the right to take action against federally funded child-welfare organizations that deny these services “due to a conflict with the organization’s religious beliefs.”
The news of the order received swift condemnation from human rights groups. “The leaked draft of Donald Trump‘s License to Discriminate order is sweeping and dangerous,” said Chad Griffin, President of the Human Rights Campaign. “It reads like a wishlist from some of the most radical anti-equality activists. If true, it seems this White House is poised to wildly expand anti-LGBTQ discrimination across all facets of the government — even if he does maintain the Obama EO. If Donald Trump goes through with even a fraction of this order, he’ll reveal himself as a true enemy to LGBTQ people.”
To read the full text of the draft order, please continue to page 2.