Twin threats: Trump’s “religious freedom” executive order, like FADA, means freedom to discriminate
By Ken Burrows
Amid the competing personal and political headlines of the early Trump presidency, one story that’s been comparatively quiet has been Trump’s executive order on “religious freedom.” A draft copy of the order was leaked in January, downplayed at the time by press secretary Sean Spicer as essentially a work in progress and said to be just one among several draft directives on a range of topics being considered by the president’s transition team.
But it has not gone away. Indeed, in early March The Advocate, an LBGT-interest magazine and website, described Trump’s order as “still very much alive and on its way,” according to a member of the president’s transition team. The Advocate said the attorney who worked on the original order, Ken Kuklowski, is in the process of redrafting it, to make it more likely to stand up to judicial scrutiny. Ken Blackwell, who was domestic policy chair for the Trump transition team, also reportedly said the order is definitely still under consideration.
Any “religious freedom” order promulgated by Trump is inherently ominous since it would very likely diminish the rights and well-being of select groups of citizens through legalized discrimination permitted in deference to religious beliefs. The danger is real and growing because Trump himself has proven politically beholden to the religious right, which continuously militates for such discriminatory privileges, and because Neil Gorsuch is taking his seat on the Supreme Court and has a record of readily supporting religion-motivated discrimination in cases that have come before him.
Side note: Kuklowski, the attorney said to be redrafting Trump’s executive order, is a former director of the Family Research Council’s (FRC) Center for Religious Liberty, a senior attorney with the far-right Liberty First Institute, and a contributor to the Breitbart website. The Southern Poverty Law Center (SPLC) lists the FRC as a hate group due to its consistently making false, defamatory claims about the LGBT community based on discredited research and junk science. “The intention [of the FRC] is to denigrate LGBT people,” says the SPLC, and it continuously battles against same-sex marriage, hate crime laws, and anti-bullying efforts.
“Wholesale exemptions,” numerous harms
What we know thus far gives ample reason to fear discrimination risks. As originally drafted, the president’s executive order would allow businesses, nonprofits, and even government employees to refuse service to people they see as offending their religious beliefs about such things as marriage, abortion, premarital sex, and gender identity. An article reported in partnership with the Investigative Fund at the Nation Institute said the order 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,” the article said, “and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act.”
Americans United for Separation of Church and State (AU), in a February Wall of Separation blog, itemized some of the harms Trump’s executive order would permit. They include:
- It would allow an employer, even a for-profit company, to deny insurance coverage for women’s preventative health services for religious reasons. This could include access to contraception, testing for HPV (human papillomavirus), screening for HIV, and counseling for domestic violence.
- It would allow taxpayer-funded adoption and foster care agencies to refuse shelter and help to LGBTQ youth and refuse to place children with certain parents if this were seen to conflict with an agency’s religious views.
- It would permit federal contractors and grantees to discriminate in hiring on the basis of religion and deny a federally funded job to a candidate who has the “wrong” religion.
- It would enable federal employees and federally funded social service agencies to deny services such as reproductive healthcare and HIV treatment to selected people, based on religious objections. Potentially, a Federal Emergency Management Agency (FEMA) employee could refuse to help an unmarried couple who lost their home in a natural disaster.
“This order would betray real religious freedom,” AU said. “Religious freedom is a fundamental American value. It guarantees us the right to believe or not as we see fit, but it doesn’t give us a right to harm others. Enshrining discrimination in our nation’s laws is not religious freedom.” (AU is a 70-year-old nonpartisan educational and advocacy organization dedicated to advancing the constitutional principle of church-state separation.)
Similar to FADA
Trump’s executive order draft closely mirrors a proposed Congressional measure called the First Amendment Defense Act (FADA). The two are almost redundant. FADA was initially introduced in Congress as H.R. 2802 in 2015, referred to the House Ways and Means Committee, but has not seen any subsequent activity thus far. It has 172 cosponsors. Here again, if FADA were to pass and then be challenged in the courts, there is every reason to expect Gorsuch would defend it. It is reasonable to speculate that, given the similarities between Trump’s executive order and FADA, both may have simply been put on temporary hold until the religion-friendly Gorsuch was confirmed.
During the fall campaign candidate Trump promised to sign FADA if it reached his desk. Despite its broad and benign-sounding name, FADA is hardly a defense of the First Amendment and in fact comes closer to being an assault on it. Very much like Trump’s executive order, FADA also narrowly focuses on the issue of religious views as these relate to marriage. It seeks to prevent the government from penalizing persons (including corporations) when such a person “believes or acts” in accordance with their religious or moral views about marriage—specifically the view that holds marriage to be exclusively “the union of one man and one woman” and the view that sexual relations “are properly reserved to such a marriage.”
So under FADA—as with Trump’s executive order—people, businesses, health care providers and many others could discriminate against same-sex marrieds, cohabiting couples, single mothers, and other sexually active unmarrieds in ways that would otherwise be illegal (e.g., inequitably denying housing or various health services) and suffer no government sanction if they cite religious beliefs as justifying their actions. The Act says its provisions apply to persons “regardless of religious affiliation or lack thereof.” Since courts generally accept claims of religious sincerity at face value, FADA at least opens the door to persons doing harm while citing beliefs they do not actually hold.
Rep. Raul Labrador, R-Idaho, and Sen. Mike Lee, R-Utah, both publicly stated they planned to reintroduce FADA this year. The bill failed in the past after critics pointed out its potential to codify discrimination against LGBTQ people, unmarried heterosexual couples and unwed mothers. But the circumstances in 2017 with Trump as president are more problematic because Attorney General Jeff Sessions, while still a senator, was among the sponsors of FADA and a vocal supporter. He would be tasked with enforcing his own controversial law in a fair and unbiased manner. Further complicating the matter is the fact that Trump’s Health and Human Services secretary, Tom Price, also signed on to the bill.
“Sweeping, staggering” provisions that may violate the Establishment Clause
The Nation Institute Investigative Fund’s article pointed out the breadth of Trump’s original order draft by saying: “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.”
Legal experts cited the order as “sweeping” and “staggering,” saying it might exceed the authority of the executive branch if enacted. Also, by extending its protections to only particular sets of religious beliefs, it would risk violating the Establishment Clause of the First Amendment.
While the order does not mention Christianity by name, it specifically outlines views held by conservative Christians as beliefs deserving protection. The Washington Post quoted Lambda Legal CEO Rachel Tiven as saying the order is “an invitation to theocracy. It is the privileging of some religions over others and an invitation by members of those religions to flout the law.” (Lambda Legal describes itself as the nation’s oldest and largest legal organization working for the civil rights of lesbians, gay men, and people with HIV/AIDS.)
Jenny Pizer, senior counsel and law and policy director for Lambda Legal, said the language in Trump’s order 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.”
Human Rights Campaign (HRC) President Chad Griffin said the order “reads like a wish list from some of the most radical anti-equality activists.” HRC spokeswoman Olivia Dalton has been quoted as saying: “Donald Trump and Mike Pence have repeatedly threatened the LGBTQ community, and by their own admission this ‘license to discriminate’ order has been circulating for weeks. No one should be surprised…just how low they’re willing to go.” (The Human Rights Campaign labels itself America’s largest civil rights organization working to achieve lesbian, gay, bisexual, transgender and queer equality.)
Might exceed what the Constitution, RFRA, and the Supreme Court allow
The Nation Institute article also quoted Marty Lederman, a professor at Georgetown University Law Center and an expert on church-state separation and religious freedom, as saying: “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.” These 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.”
Here is more from that same article:
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.” The order privileges a certain set of beliefs, Lupu said, and that 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.
Colorado’s brush with similar threat
In January this year, the Colorado House rejected for a third year a Republican-led attempt to enact state legislation similar to FADA and RFRA. Opponents called House Bill 1013 a thinly veiled attempt to legalize discrimination against gay, lesbian, bisexual and transgender people. The Denver Post quoted Kelly Brough, president and CEO of the Denver Metro Chamber of Commerce, as saying “At its core, the premise of this bill is to allow people to use religion to ignore laws they don’t want to follow.”
The bill would have established a more stringent RFRA-like test for any law that might be considered a burden to someone’s religious beliefs. The State, Veterans and Military Affairs Committee heard more than three hours of testimony on the measure from religious leaders, legal experts, business owners and civil rights advocates, before casting a vote that fell along party lines (Republicans for, Democrats against). Religious leaders addressing the bill were divided, with some calling it an essential protection, and others saying it would sanction discrimination, likening it to the past use of religion to justify things such as slavery.
The Post quoted Jasper Peters, a pastor with Trinity United Methodist Church in Denver, as saying “This bill is a thinly veiled attempt to make tolerable that which is not tolerable.” Jay Ledbetter, a messianic rabbi, countered that it doesn’t provide a right to discriminate—it simply gives those who object to laws a voice in court.
Colorado state law prohibits discrimination based on sexual orientation. How those protections would be viewed in the context of a religious freedom law would likely be left for courts to decide. Legal experts opposed to HB-1013 told the committee that the proposal went further than other religious freedom laws around the country. Melissa Hart, a constitutional law professor at the University of Colorado Law School, reportedly testified that “This law is not only about florists and bakers that are not wanting to participate in certain types of weddings. The room for personal interpretation of this law and the opportunities for abuse are simply astonishing.”
WWTD? (What will Trump do?)
Back to the national scene, in February the White House announced that it would continue President Obama’s executive order protecting federal contractors from anti-LGBT discrimination. The Washington Post quoted the White House as saying: “President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election.”
However, as numerous news stories have pointed out, the actions of “president” Trump are frequently at odds with the promises of “candidate” Trump, so it is anybody’s guess whether a February promise of the president will hold true in his actions at a later date. There is little in his track record to instill confidence on that. At the National Prayer Breakfast, he said freedom of religion is “under threat all around us.” But the leaked draft of his executive order points to a different “threat all around us”—that being a curtailing of the rights and equality of millions of citizens by granting broad religious freedom exemptions to generally applicable law, thereby giving a green light to harm others in religion’s name.
(Thanks to Sarah Posner and The Investigative Fund at The Nation Institute for selected analysis and commentaries included in this article.)