Trump Considering An Order To Legalize Discrimination

(This caricature of Donald Trump is by DonkeyHotey.)

The following is part of an excellent article in The Nation by Sarah Posner:


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 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. . . .

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 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.