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‘Religious Freedom’ Order Could Legalize Discrimination

President Donald Trump has given women, along with the LGBT community and its advocates, another reason to doubt his commitment to protecting equal rights.

A leaked draft of a “religious freedom” executive order, obtained by The Nation, would legalize discrimination based on religious beliefs “without suffering adverse treatment from the Federal Government.”

The order, “Establishing a Government-Wide Initiative to Respect Religious Freedom,” covers a broad spectrum, allowing for discrimination not just in places of worship but in “all activities of life.” The text states, vaguely, “Americans and their religious organizations will not be coerced by the Federal Government into participating in activities that violate their consciences.”

If signed, it would allow individuals as well as organizations to claim 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.”

The order defines “religious organization” in a very broad scope:

“’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.”

And “religious exercise” is protected even if the cited beliefs do not necessarily align with that faith’s systemic views:

“‘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.”

However, the order goes on to become much more specific, citing gay marriage, premarital sex, identifying as transgender and abortion as possible conflicts of interest — common beliefs evangelicals do not agree with. Further, all individuals will have access specifically to “health insurance that does not provide coverage for abortion and does not subsidize plans that do provide such coverage.”

The draft also specifically protects providers of child 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” — meaning facilities could turn away same-gender couples, unmarried mothers or women who have had abortions.

Further, federal employees are broadly protected from “adverse action … 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 [agencies] shall reasonably accommodate such speech and action when made within the course of their employment, contract, or grant.”

The president has not yet signed the order. White House officials reported to ABC News that the draft is one of many currently circulating the White House. On Monday White House press secretary Sean Spicer said to reporters, “There is a lot of executive orders, a lot of things that the president has talked about and will continue to fulfill, but we have nothing on that front now.”

However, prominent LGBT advocacy groups responded immediately. Chad Griffin, president of the Human Rights Campaign (HRC), called the order “sweeping and dangerous” in a statement on Wednesday.

“It reads like a wishlist from some of the most radical anti-equality activists,” Griffin said. “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.”

Kate Ellis, president and CEO of GLAAD, also issued a response on Wednesday.

“If anything in this document were to become federal law, it would be a national license to discriminate, and it would endanger LGBTQ people and their families,” Ellis aid. “Freedom of Religion does not mean the freedom to discriminate. If the Trump Administration moves forward with any of these unconstitutional and un-American policies, the chorus of public outcry will get even louder while the president’s approval ratings continue to crumble.”

GLAAD called the draft “strikingly similar to Indiana’s Religious Freedom Restoration Act (RFRA) – a law Vice President Mike Pence championed and signed into law while governor.”

Legal Issues: Past Precedent

According to the draft, the order would apply to any and all faiths. But it only names in particular commonly held conservative beliefs, which could be in violation of the Establishment Clause of the First Amendment, legal experts note.

Based on previous court rulings, this may make the order unconstitutional, Jenny Pizer, senior counsel and law and policy director for Lambda Legal, reported to The Nation. The text resembles that of a law passed in Mississippi last year, HB 1523, which a judge ruled violated the First and Fourteenth Amendments. (Mississippi is still appealing the ruling.) It is unconstitutional for an order to provide a “particular set of religious beliefs and [give] special government protection to people who hold those beliefs as opposed to different beliefs,” Pizer explained.

The judge who ruled in the Mississippi case referenced an even earlier case in Colorado regarding Amendment 2, which sought to protect discrimination based on sexual orientation. The Supreme Court in 1996 declared this unconstitutional because “a law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”

U.S. District Judge Carlton Reeves in Mississippi called a closer comparison “difficult to imagine” and wrote, “It is therefore difficult to accept the State’s implausible assertion that HB 1523 was intended to protect certain religious liberties and simultaneously ignore that the bill was passed because same-sex marriage was legalized last summer.”

Ira Lupu, a professor emeritus at the George Washington University Law School, called the order “sweeping” and said, “It raises a big question about whether the Constitution or the [Religious Freedom Restoration Act] authorizes the president to grant religious freedom in such a broad way.”

The nondescript implications could have unforeseen consequences, according to Lupu, which would be in violation of previous Supreme Court rulings. The Nation reported:

“Lupu added that the language of the draft ‘might invite federal employees,’ for example, 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.’ If other employees do not ‘fill the gap,’ he said, it could ‘lead to a situation where marriage equality was being de facto undermined by federal employees, especially in religiously conservative communities,’ contrary to Supreme Court rulings.”

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This correspondent is a guest contributor to The Washington Informer.

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