Donald Trump signed a much-hyped executive order on Thursday entitled “PROMOTING FREE SPEECH AND RELIGIOUS LIBERTY.”
Though early drafts of the order reportedly called for broad new protections for people who hold anti-LGBTQ religious beliefs, the final version of the order largely puts off big questions such as whether religion can be used as justification for discrimination until a future date. It does, however, place a significant thumb on the scale in the favor of religious conservatives.
The Trump administration’s new lead on issues related to religious liberty will be Attorney General Jeff Sessions, an anti-LGBTQ former senator who was denied a federal judgeship due to the Senate Judiciary Committee’s concerns that he is racist.
The executive order contains several provisions which confirm that Trump would like to see certain policy changes that any Republican administration was likely to implement. He instructs the Secretaries of the Treasury and of Human and Human Services, for example, to “consider issuing amended regulations . . . to address conscience-based objections to the preventative-care mandate promulgated under” a provision of the Affordable Care Act.
That means that the Trump administration is likely to push out new regulations making it easy for employers with religious objections to birth control to deny contraceptive coverage to their employees — but the administration was widely expected to implement such a policy even before this executive order came down.
Similarly, the order instructs the IRS not to “take any adverse action against” a person or organization that “speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign.” This language is actually much milder than the language the White House was expected to adopt in order to protect pastors who endanger their tax-exempt status by taking sides in an election. At most, it prevents the IRS from suddenly deciding to get much more aggressive than it has been in the past in targeting such pastors.
So the order’s most significant provision is not any part that actually states a substantive position on an important policy issue. It is, instead, a section providing that “in order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”
Ordinarily, each agency would have, at least, some degree of leeway to determine how best to bring its regulations and other policies in line with federal religious liberty laws (although they would often do so in consultation with the Justice Department). Trump’s order, however, instructs one of Trump’s most hardline subordinates to develop preemptive, administration-wide guidance that will govern “religious liberty” related matters handled by the agencies.
And, of course, “religious liberty” is often used as a code word to describe policies enabling discrimination.
In fairness, Sessions’ interpretations of the law will only guide other members of the executive branch and will not be binding upon the courts, so if Sessions overreaches, it is possible that he will be reined in by a judicial order.
Nevertheless, with Neil Gorsuch now occupying the Supreme Court seat that Senate Republicans held open for a year until Trump could fill it, the courts are unlikely to be much of a check on Sessions’ ambitions.