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.
Executive Order—Establishing a Government-Wide Initiative to Respect Religious Freedom
Establishing a Government-Wide Initiative to Respect Religious Freedom
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to guide the executive branch in formulating and implementing policies with implications for the religious freedom of persons and organizations in America, and to further compliance with the Constitution, applicable statutes, and other legal authorities, it is hereby ordered:
Section 1. Policy. The United States Constitution enshrines and protects the fundamental natural right to religious liberty. This Constitutional protection ensures that Americans and their religious organizations will not be coerced by the Federal Government into participating in activities that violate their consciences, and will remain free to express their viewpoints without suffering adverse treatment from the Federal Government. It shall be the policy of this Administration to protect religious freedom.
Sec. 2. Definitions. For purposes of this order:
(a) “Person” shall have the same definition as “person” in 1 U.S.C. 1.
(b) “Religious exercise” includes all aspects of religious observance and practice, as well as belief, and includes any act or any refusal to act that is motivated by a sincerely held religious belief, whether or not the act is required or compelled by, or central to, a system of religious belief.
(c) “Religious organization” shall be construed broadly to encompass any organization, including closely held for-profit corporations, operated for a religious purpose, even if its purpose is not exclusively religious, and is not limited to houses of worship or tax-exempt organizations, or organizations controlled by or associated with a house of worship or a convention or association of churches.
Sec. 3 Religious Freedom Principles and Policymaking Criteria. All executive branch departments and agencies (“agencies”) shall, to the greatest extent practicable and permitted by law, adhere to the following principles and criteria when formulating and implementing regulations, actions, or policies:
(a) Religious freedom is not confined to religious organizations or limited to religious exercise that takes place in houses of worship or the home. It is guaranteed to persons of all faiths and extends to all activities of life.
(b) Persons and organizations do not forfeit their religious freedom 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.
(c) As required by religious freedom laws such as the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq. (“RFRA”) and the religious provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 20003 et seq., agencies shall faithfully discharge their duty to accommodate the religion of federal employees and shall not promulgate regulations, take actions, or enact policies that substantially burden a person’s or religious organization’s religious exercise unless the imposition represents the least restrictive means of furthering a compelling governmental interest. Regulations, actions, or policies shall not be deemed “compelling” simply by virtue of their having been applied neutrally, broadly, or across the Federal Government.
Sec. 4. Specific agency Responsibilities to Avoid Potential Violation of Religious Freedom
(a) The Secretaries of Health and Human Services, Labor, and Treasury shall immediately issue an interim final rule that exempts from the preventative-care mandate set forth in 42 U.S.C. 300gg-13(a)(4) all persons and religious organizations that object to complying with the mandate for religious or moral reasons.
(b) The Secretary of Health and Human Services shall take appropriate actions, through mechanisms to ensure compliance with existing statutory and other protections, if necessary, to ensure that any individuals purchasing health insurance in the individual market (whether through a federally facilitated exchange, a state-sponsored health insurance exchange, or otherwise) has the ability to purchase health insurance that does not provide coverage for abortion and does not subsidize plans that do provide such coverage.
(c) The Secretary of Health and human Services shall take all appropriate actions to ensure that the Federal Government shall not discriminate or take any adverse action against a religious organization that provides federally-funded child-welfare services, including promoting or providing adoption, foster, or family support services for children, or similar services, on the basis that the organization declines to provide , facilitate, or refer such services due to a conflict with the organization’s religious beliefs. The Secretary of Health and human Services shall, where authorized by law, promptly propose for notice and comment new regulations consistent with this policy.
(d) All agencies shall, with respect to any person, house of worship, or religious organization that is a recipient of or offeror for a Federal Government contract, subcontract, grant, purchase order, or cooperative agreement, provide protections and exceptions consistent with sections 702(a) and 703(e) of the Civil Rights Act of 1964 (42 U.S.C. 20003-I(a) and 2000e-2(e)) and section 103(d) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12113(d)). The Secretary of Labor shall, where authorized by law, promptly propose for notice and comment new regulations consistent with this policy.
(e) The Secretary of the Treasury shall ensure that the Department of the Treasury shall not impose any tax or tax penalty, delay or deny tax-exempt status, or disallow tax deductions for contributions made under 26 U.S.C. 501(c)(3), or otherwise make unavailable or deny any tax benefits to any person, church, synagogue, house of worship or other religious organization.
(1) on the basis of such person or organization speaking on moral or political issues from a religious perspective where religious speech of similar character has, consistent with law, not ordinarily been treated as an intervention in a political campaign by the Department of the Treasury, or
(2) on the basis that such person or organization 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.
The Secretary of the Treasure and the Commissioner of Internal Revenue shall, where authorized by law, promptly propose for notice and comment new regulations consistent with this policy.
(b) No agency shall, to the extent allowed by law, not recognize any decisions or findings made by any federally-recognized accrediting body that revokes or denies accreditation to, or otherwise disadvantages, a religious organization on the basis that such organization believes, speaks, or acts (or declines to act) in accordance with a belief described in section 4(e)(2) of this order.
(g) No agency shall exclude or otherwise make unavailable or deny any person or religious organization admission or access to charitable fundraising campaigns on the basis that such person or organization believes, speaks, or acts (or declines to act) in accordance with the beliefs described in Section 4(e)(2) of this order.
(k) No agency shall take adverse action against any person or religious organization that is a Federal employee, contractor, or grantee on the basis of their speaking or acting in accordance with the beliefs described in section 4(e)(2) of this order while outside the scope of their employment, contract, or grant, and shall reasonably accommodate such speech and action when made within the course of their employment, contract, or grant. This provision shall not be construed to diminish or otherwise limit any other protection provided by this order.
(l) The Attorney General shall establish with the Department of Justice a Section or working group that will ensure that the religious freedom of persons and religious organizations is protected throughout the United States, and shall investigate and, if necessary, take or coordinate appropriate action under applicable religious freedom laws.
Sec. 5. General Provisions.
(a) 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.
(b) 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.
(c) Nothing in this order shall be construed to impair or otherwise affect (i) the authority granted by law to an agency, or the head thereof, or ii) the functions of the OMB Director relating to budget, administrative, or legislative proposals.
(d) This order shall be carried out subject to the availability of appropriations and to the extent permitted by law.
(e) This order does not create any right or benefit, substantive or procedural, enforceable at law or equity by any party against the United States, its departments, agencies or instrumentalities, its officers, employees, or agents, or any other person.