Leaked Draft of Trump’s Religious Freedom Order Reveals Sweeping Plans to Legalize Discrimination

Burgess COMMENTARY

Peter Burgess

Leaked Draft of Trump’s Religious Freedom Order Reveals Sweeping Plans to Legalize Discrimination

If signed, the order would create wholesale exemptions for people and organizations who claim religious objections to same-sex marriage, premarital sex, abortion, and trans identity.

Donald Trump speaks to a gathering of clergy at the New Spirit Revival Center in Cleveland Heights, Ohio, September 21, 2016. (Reuters / Jonathan Ernst)

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.

This article was reported in partnership with the Investigative Fund at the Nation Institute.

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.”

Language in the draft document specifically protects the tax-exempt status of any 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 STAKES ARE HIGHER NOW THAN EVER. GET THE NATION IN YOUR INBOX.

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.

“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,” said Marty Lederman, a professor at Georgetown University Law Center and an expert on church-state separation and religious freedom.

The exemptions, Lederman said, could themselves violate federal law or license individuals and private parties to violate federal law. “Moreover,” he added, “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.” It would be “astonishing,” he said, “if the Office of Legal Counsel certifies the legality of this blunderbuss order.”

The leaked draft maintains that, as a matter of policy, “Americans and their religious organizations will not be coerced by the Federal Government into participating in activities that violate their conscience.”

It sets forth an exceptionally expansive definition of “religious exercise” that extends to “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.” “It’s very sweeping,” said Ira Lupu, a professor emeritus at the George Washington University Law School and an expert on the Constitution’s religion clauses and on the 1993 Religious Freedom Restoration Act (RFRA). “It raises a big question about whether the Constitution or the RFRA authorizes the president to grant religious freedom in such a broad way.”

In particular, said Lupu, the draft order “privileges” a certain set of beliefs about sexual orientation and gender identity—beliefs identified most closely with conservative Catholics and evangelical Christians—over others. That, he said, goes beyond “what RFRA might authorize” and may violate the Establishment Clause.

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.

Jenny Pizer, senior counsel and law and policy director for Lambda Legal, said some of the language in the draft order is similar to language in a law passed last year in Mississippi, which a federal district court ruled violated both the Establishment Clause and the Equal Protection Clause. (The case is now on appeal.) Pizer said the draft order would appear to violate the Establishment Clause by listing a “particular set of religious beliefs and giving special government protection to people who hold those beliefs as opposed to different beliefs.”

Section 4 of the order, “Specific Agency Responsibilities,” requires HHS to issue a rule exempting any person or organization with religious objections from complying with the ACA’s preventive-care mandate—42 U.S.C. 300gg-13(a)(4)—which includes contraceptive coverage. It requires HHS to ensure that anyone purchasing insurance on a health-care exchange have the option of purchasing a plan that neither covers abortions nor “subsidize[s] plans that do provide such coverage.”

And it bars HHS from taking any adverse action against federally funded child-welfare organizations, including those offering adoption, foster, or family support services, that deny anyone these services “due to a conflict with the organization’s religious beliefs.”

Pizer said this language constitutes “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 foster care, which is federally funded. More broadly, she said, it would permit organizations receiving federal grants or contracts to provide child welfare services not only to refuse necessary care but to refuse 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.” Even during the George W. Bush administration, she noted, “there were protections in executive orders that beneficiaries of grantees and contractors were not to be discriminated against on the basis of sexual orientation and gender identity.”

Section 4 also requires the Department of Justice to establish a new section or working group dedicated to protecting “religious freedom.”

On Tuesday, the White House announced that it would continue President Obama’s executive order protecting federal contractors from anti-LGBT discrimination. Yet the new draft order codifies a laundry list of claims advanced by the Christian right in recent years as indicating that the advance of LGBT rights has put the religious freedom of conservative Christians at risk. “They would say this is a nondiscrimination order,” said Lambda Legal’s Pizer. “We disagree. We would say being denied the ability to discriminate against others is not discrimination against you.”

This article was reported in partnership with The Investigative Fund at The Nation Institute.

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.

Sponsored by Revcontent