Draft of “Sweeping” Anti-LGBTQ Executive Order Leaked
After news leaked earlier this week the Trump administration was assembling an anti-LGBTQ executive order to bridge the gap until the First Amendment Defense Act (FADA) was passed, the Trump administration denied they were targeting the LGBTQ community and went so far as to announce they would retain President Obama’s executive order protecting LGBTQ federal workers. Tonight a draft of a “sweeping” plan to discriminate against the entire LGBTQ community (as well as large swaths of the rest of the nation) in the name of religious freedom just surfaced, and it’s frightening.
The announcement that the White House would retain President Obama’s order came with little push back from the anti-LGBTQ right – something longtime LGBTQ advocates like Holy Bullies and Headless Monsters writer Alvin McEwen took notice of immediately. Now we know why they remained silent.
Writing for The Nation, investigative journalist Sarah Posner reported tonight she obtained a draft copy of the executive order Washington Post Political Analyst Josh Rogin referenced in a tweet on Monday.
A leaked copy of a draft executive order titled “Establishing a Government-Wide Initiative to Respect Religious Freedom,” obtained by The Investigative Fund and The Nation, reveals sweeping plans by the Trump administration to legalize discrimination.
The four-page draft order, a copy of which is currently circulating among federal staff and advocacy organizations, construes religious organizations so broadly that it covers “any organization, including closely held for-profit corporations,” and protects “religious freedom” in every walk of life: “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 draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act. The White House did not respond to requests for comment, but when asked Monday about whether a religious freedom executive order was in the works, White House spokesman Sean Spicer told reporters, “I’m not getting ahead of the executive orders that we may or may not issue. 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.”
The order explicitly protects any tax-exempt organization that:
“…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 breadth of the draft order, which legal experts described as “sweeping” and “staggering,” may exceed the authority of the executive branch if enacted. It also, by extending some of its protections to one particular set of religious beliefs, would risk violating the Establishment Clause of the First Amendment to the Constitution.
Georgetown University Law Center law professor Marty Lederman spoke with Posner about the executive order offering his opinion on the order’s potential conflict with the First Amendment’s Establishment Clause. “This executive order would appear to require agencies to provide extensive exemptions from a staggering number of federal laws—without regard to whether such laws substantially burden religious exercise,” he said. Lederman added, “Moreover, the exemptions would raise serious First Amendment questions, as well, because they would go far beyond what the Supreme Court has identified as the limits of permissive religious accommodations.”
He concluded, “It would be “astonishing if the Office of Legal Counsel certifies the legality of this blunderbuss order.”
The executive order broadly protects religious objections to the point of creating new classes of citizenship for large swaths of the population.
In its breadth, the order defines religious exercise as “any act or 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.”
Moreover, those broad strokes cater to a specific dominant strand of religion in America – conservative Catholics and evangelical Christians. Speaking with Posner, George Washington University Law School professor emeritus Ira Lupu dissected this promotion of one set of religious belief above others.
“It’s very sweeping,” Lupu said. “It raises a big question about whether the Constitution or the RFRA authorizes the president to grant religious freedom in such a broad way.”
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.
Alvin McEwen at Holy Bullies and Headless Monsters drew connections between the leaked memo and another event that may not be coincidence. He reported:
I would also like to point out that this possible executive order seems to be part of a larger desire of religious right and evangelical groups to take a more aggressive attempt to seize power in the political arena.
Earlier today, the Family Research Council sent out a Washington Update bragging about a press conference it held with various religious and Congressional leaders to introduce what the organization calls The Free Speech Fairness Act, H.B. 781. This act would overturn The Johnson Amendment, which forbids tax-exempt organizations (i.e churches) from openly endorsing and opposing political candidates.
According to FRC:
Pastors have for too long been intimidated into silence. As I told the press today, Dr. Martin Luther King — the greatest “political pastor” in the nation — spoke forcefully from the pulpit about how the issues of the day were to be driven by pastors and the people in pews. For the whole of American history, churches have been at the forefront of shaping debate and public policy. That’s where they ought to stay.
So now not only is there a possibility of an executive order which could enshrine all sorts of discrimination into law, but there is also a push to allow churches to endorse or oppose political candidates without losing their tax-exempt statuses.
Posner’s article is worth a full read as it details many of the potential consequences the executive order would create ranging from adoption to availability of basic government services.
The entire draft executive order reads:
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.
Even if courts eventually strike down any version of this order, Trump’s personal assault on the LGBTQ community is just a precursor to the First Amendment Defense Act (FADA) – an act he’s vowed to sign into law once it reaches his desk.
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