President Trump’s promise not to rescind President Obama’s 2014 executive order protecting the LGBT employees of federal contractors may very well have meant nothing. Rumors of an anti-LGBT “religious freedom” order being developed this week proved to be quite accurate, and though it doesn’t technically rescind the protections, it would create such a broad license to discriminate that it virtually overrides them. And LGBT people aren’t the only target.
Trump hasn’t signed the order yet, but on Wednesday evening, The Nation published a leaked draft of it. Modeled after the First Amendment Defense Act, which Trump promised to sign, the executive order is couched in language about not “coercing” religious organizations into “violating their conscience” by promising they will not “suffer adverse treatment” if they do. But from there it goes to extreme lengths to enable, encourage, and enshrine discrimination.
If that language seems a bit vague, the order offers plenty of specific examples to make it clear what kinds of discrimination it wants to allow religious organizations to commit:
- It protects child-welfare services and adoption agencies that want to discriminate for any religious reason (i.e. against same-sex couples, unmarried couples, etc.) by ensuring they can’t lose funding.
- It explicitly protects any person or organization that believes “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.”
That last point is a basic endorsement of anti-gay, anti-sex-outside-of-marriage, anti-transgender, and anti-abortion beliefs and any discriminatory actions taken on behalf of those beliefs.
To be clear, it doesn’t protect people regardless of what they believe on LGBT issues, sex before marriage, or abortion; it only protects people people who take the religious conservative position on those issues. It is a flagrant endorsement of one set of religious beliefs over another.
As some of the experts the Nation talked to pointed out, that likely makes it unconstitutional. Mississippi passed a law last year that similarly endorsed those specific religious beliefs, and in July, a federal judge ruled that it’s unenforceable. The state of Mississippi is still fighting on appeal, making egregiously anti-LGBT arguments.
Additionally, every aspect of the order’s language emphasizes the broadest possible interpretation.
It defines “religious exercise” with this broad language, which notably includes “refusal to act”:
“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.
In other words, if a person believes something personally, it doesn’t matter what their own organized religion believes — they’re still protected.
Likewise, “religious organization” is also defined as broadly as possible, in ways reminiscent of the Supreme Court’s Hobby Lobby decision:
“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.
This means that any business whose owners believe — according to the broad definition of “religious exercise” — that their business has a religious purpose or mission, then they can enjoy the protections of the order.
To recap, this executive order would essentially let anyone discriminate against LGBT people, people who’ve had sex outside of marriage, or people who’ve had or want to have abortions simply by claiming that a religious belief motivated the discrimination.
Thus, the fact that federal contractors would still be required to have LGBT protections would be moot. Since religion is the primary — if not solitary — reason ever expressed for discriminating against LGBT people, this order would ensure that anybody who wanted to discriminate could do so without penalty, regardless of what protections they were violating.
UPDATE: Responding to ABC News, the White House did not dispute the authenticity of the draft, but did claim that it is one of hundreds of circulating executive orders that do not all reflect administration thinking or intended policy. White House spokesperson Sarah Huckabee Sanders explained, “We do not have plans to sign anything at this time but will let you know when we have any updates.”
UPDATE: It was rumored that the “religious freedom” executive order would be issued in conjunction with the National Prayer Breakfast Thursday morning, but the White House reaffirmed to BuzzFeed that it still had no such plans:
Just In: The White House tells me this morning it has no current plans to issue an executive order on religious freedom. pic.twitter.com/m0HYAUZLID
— Dominic Holden (@dominicholden) February 2, 2017