The LGBT community and its allies thought we could take a breath after the White House promised President Trump would keep Obama-era protections in place.
But a leaked draft of an executive order on religious freedom shows the battle has just begun.
Obtained by The Nation and The Investigative Fund, the four-page document, “Establishing a Government-Wide Initiative to Respect Religious Freedom,” unveils a sweeping agenda to enshrine discrimination.
If signed, it would grant broad exemptions for businesses and individuals to discriminate in employment, housing, goods and services—even government contracts—based on gender identity, sexual orientation, reproductive choices and more.
The order would also protect the tax-exempt status of religious organizations that 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.”
Copies of the draft are reportedly circulating among government staffers and advocacy organizations. It's not clear if Trump still intends to sign it. Rep. Steve Russell, who unsuccessfully tried to get a religious-freedom bill passed last year, told BuzzFeed in December that Trump’s people gave him “very good assurances” the president would take executive action protecting religious freedom.
If the EO is signed, adoption agencies could deny children to gay parents, schools could fire transgender teachers, and Kim Davis could go back to denying marriage licenses to same-sex couples.
“It’s shocking in scope,” Maggie Garrett of Americans United for Separation of Church and State told Reveal. “It uses religion as an excuse to discriminate against almost anyone. It targets LGBT people and women, but those of minority faiths and non-theists and almost anyone else will be affected.”
"This draft [order] is a sweeping and dangerous license to discriminate," tweeted HRC's Chad Griffin, "and an attack on LGBTQ Americans."
The order goes even further than the 1993 Religious Freedom Restoration Act, putting specific views on sex and sexuality above others. But Rep. Steve Russell, the Oklahoma Republican who authored a failed religious liberty amendment in 2015, says it's just about being tolerant.
“A lot of these folks that are crying for tolerance, they’re not allowing tolerance on the other side of the issue,” he told Reveal. “They don’t want people of faith to do what they do. They want to take away your beliefs and your ideologies. They’re saying we want accommodation and you can’t have yours.”
Jenny Pizer, law and policy director for Lambda Legal, sees it a little differently. She told The Nation,"Being denied the ability to discriminate against others is not discrimination against you.”
Below, read the draft in full.
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.