Whether Trump signs it or not, the so-called “religious freedom” executive order is about more than authorizing discrimination — it’s about encouraging it.
By Rebecca Buckwalter-Poza
President Donald Trump at the National Cathedral on January 21st, 2017, in Washington, D.C. (Photo: Mandel Ngan/AFP/Getty Images)
It was a group like a dozen others we’d seen that night. Five or six frat boys on the loose from Georgetown University or George Washington University, a few drinks past sobriety. But this group did something the others hadn’t. As we walked along a dark stretch of U Street in Washington, D.C., holding hands, one shouted from behind us, “We’ll rape you straight.” His compatriots cheered.
I remembered the night a police officer in Florida demanded our licenses and our legally parked car’s registration because he’d spotted a kiss goodnight, my fears compounded by the thought that it might be reported, embarrassing the political campaign on which I was working. I thought of a dozen other moments that triggered an overwhelming recognition of vulnerability that will never vanish, only subside.
For a long time, harassment was less surprising to me than the prospect of being able to show public affection, even circumspectly, without consequence. Growing up in North Carolina, I never believed that I would be treated equally or respected after coming out. The choice was between being accepted and living apart. Where I come from, gay partners are referred to even in private social settings as “friends.” When angry, family members threatened to out me to “ruin my career.” It’s unlikely two hands would be required to count the number of openly gay people I knew, even in Durham.
It was a reminder that, even in a liberal enclave of a liberal city, there were those waiting for the quiet moment, and the security of like-minded company, to go to war again.
In 2009, Peter Beinart predicted the end of the Culture Wars. But the Culture Wars never ended; there was no truce or treaty, no lessening of tensions. Rather, they quietly intensified: Residential and social ideological segregation has grown, political polarization shapes media habits more than ever, and homeschooling is growing. Every old animus remains, nurtured by those who bided their time waiting for a Donald Trump to make hate great again, and internalized by those who, like me, are both combatants in and casualties of the Culture Wars.
That night in Washington was the summer of 2009. The man’s shout and his friends’ laughter had the force of a physical blow. It was a reminder that, even in a liberal enclave of a liberal city, there were those waiting for the quiet moment, and the security of like-minded company, to go to war again. But the pain of that moment was nothing compared to the moment I began reading Trump’s “religious freedom” executive order.
In early February, TheNation published a leaked draft of an executive order titled “Establishing a Government Wide Initiative to Respect Religious Freedom.” The language is, for lack of a more damning adjective, chilling to any proponent of the Constitution. The order aims to eradicate federal protections for LGBT Americans and their families — and undermine reproductive rights — under the guise of religious freedom.
The order announces a lofty intention: protecting Americans from being “coerced by the Federal Government into participating in activities that violate their conscience.” It then sets out, over four dense pages, its dubious means of doing so: authorizing those who hold extreme and discriminatory views to act on them, while guarding against a violation of conscience by licensing a violation of others’ fundamental rights.
Upon review, it rapidly becomes clear that Trump can’t expect the order to survive judicial review intact. He tips his hand by instructing agencies to issue regulations to implement provisions as legally feasible. The purpose of the order is to normalize and even privilege a set of positions and viewpoints, not to legalize all of them.
The order gives Americans total “religious freedom” in “all activities of life.” Lest the sweeping nature of “all activities of life” be limited by interpretation (or by a deficit of imagination), Trump’s draft order suggests specific scenarios: Americans “do not forfeit their religious freedom when providing social services, education, or healthcare, earning a living, seeking a job, or employing others” — or when interacting with government at any level. Never mind that 61 percent of Americans oppose allowing belief-based service refusals.
From a Michigan pediatrician to a Colorado baker, service providers and business owners who have objected to accommodating same-sex couples would have an affirmative right to discriminate. While it is not illegal to discriminate on the basis of sexual orientation in public accommodation in 29 states — the pediatrician in Michigan faced no legal consequence, for example — there is a vast difference between failing to make discrimination illegal and explicitly protecting discrimination in law — federally. While LGBT Americans may be the most obvious targets, unwed parents and their children, for example, could also be discriminated against with impunity under the proposed language.
Trump’s order would not only permit but actually promote discrimination; it is a document that seeks to effect a political and cultural shift, not just a legal one.
Unsatisfied by having spelled out the right to refuse to provide social services, Trump dedicates a subsection to making it more difficult for those on the wrong side of the far right’s religious beliefs to have a family and care for their children. Adoption agencies and support services would be explicitly granted the right to refuse adoptive parents and families based on belief. This is, of course, redundant — he’s already bestowed that right. The point of the subsection is political and social.
This subsection is a précis of the failed Child Welfare Provider Inclusion Act of 2014, the first of several such measures too extreme for Congress to pass that Trump incorporates to establish his far-right bona fides. It is a particularly short-sighted gesture. More than 420,000 children are in the foster care system. Same-sex couples are six times more likely than straight couples to foster children; we are four times more likely to adopt. But if Trump’s executive order were implemented, agencies and service providers could deny not only opportunities to foster and adopt but also critical services and benefits to any family whose structure is inconsistent with their religious beliefs.
Trump’s text then turns to ensuring the right of corporations to discriminate by codifying Burwell vs. Hobby Lobby Stores, Inc., in which the Supreme Court held that the Religious Freedom Restoration Act, or RFRA, which limits government infringement on religious exercise, protects some closely held corporations as well as individuals. Passed in response to clashes between government agencies and Native American religious beliefs, RFRA — and offshoot state legislation — has become a favorite vehicle for justifying discrimination in an ever-widening array of settings.
Trump would also resurrect the Russell Amendment, which would have allowed employers to refuse to hire — as well as fire — individuals who clashed with the employer’s religious belief even simply by being gay. He elsewhere mandates federal employers, contractors, and grantees to proactively protect employees’ prerogative to, in effect, preach prejudice and discriminate openly.
Conversely, Trump would kill the Johnson Amendment. On the campaign trail and again at the National Prayer Breakfast, Trump promised religious conservatives that he would do away with this 1954 tax provision barring some tax-exempt organizations, including churches, from endorsing political candidates. Trump can’t actually repeal legislation, but he can — and here does — tell the Internal Revenue Service not to enforce it. The result is the same.
There are more than 1,300 megachurches — that is, churches with more than 2,000 regular attendees — in the United States. Their total annual income tops $8.5 billion. The Second Baptist Church of Houston alone has 24,000 members and a budget of $53 million. If Trump signed this order, these organizations would change the electoral landscape overnight, especially at the state level.
And Trump does more than license churches to enter the political arena: He grants special protections to organizations like churches and to federal employees who act consistent with any of four enumerated, extreme viewpoints: Marriage is between one man and one woman, sex is for such marriages only, gender is immutable and defined at or before birth, and life begins at conception. Organizations advocating opposite views, by the way, could still be penalized for doing so. But there’s limited cause to worry that this provision will survive judicial scrutiny. The first three beliefs come from a Mississippi religious freedom bill that a federal district court ruled unconstitutional.
Finally, although Trump had promised not to rescind Barack Obama’s executive order creating workplace protections for LGBT employees, in two devastating bullets Trump instructs agencies to reverse all current agency rulings, guidance, and regulations inconsistent with the order — declaring that the new document supersedes any previous, related executive orders.
In sum, the order would erase almost all existing federal efforts to affirm LGBT rights, which are still in a nascent and unprotected state as neither Congress nor the Supreme Court has codified protections. The Obama administration established rights through executive orders and administrative maneuvers. For example, agencies interpreted Title VII, which forbids sex discrimination in employment, to encompass gender identity and sexual orientation. These are now vulnerable. Only independent agencies, such as the Equal Employment Opportunity Commission, or EEOC, would continue to honor these measures if the order were signed.
What is striking is that the order would not only permit but promote discrimination; it is a document that seeks to effect a political and cultural shift, not just a legal one. That’s the thread that the New York Times picked up in a suspiciously self-serving story praising Ivanka Trump and Jared Kushner’s efforts to squelch the order. For Trump, who uses narrative and manufactures conflict to drive interest, reality television style, the Culture Wars are the perfect frame: There are two sides, high stakes, and an inexhaustible number of storylines. And this one is far from over.
Although the New York Times article suggested Trump will not issue a religious freedom order, his comments at the National Prayer Breakfast (and the confidence of Tony Perkins, leader of the Family Research Council) indicate otherwise. Either way, the fact that such a thorough and mercilessly oppressive order exists and was under active consideration despite Trump’s representations exposes the administration’s duplicity on LGBT rights.
The most likely outcome? A final product that will, like the draft order, attack LGBT rights obliquely, entirely under the pretext of protecting “religious freedom” — and, like the draft, repeal the 2014 Obama executive order not explicitly but by rescinding all inconsistent executive orders, rules, and guidance. After all, “gay,” “lesbian,” and “transgender” do not appear once in the document that would erase these groups’ rights.
Such an order, particularly if it contains the same viewpoint-privileging provisions as the draft, is unlikely to survive judicial review unscathed. But it was never meant to do so. That so much of the order is so likely to be struck — or internally redundant — proves its purpose is performative. Of course, this is not to say that no part of the order will survive. Neil Gorsuch is the author of the Hobby Lobby decision in the Tenth Circuit expounding the same conclusion as the one the Supreme Court adopted. If parts of this order were reviewed by a Supreme Court that includes Gorsuch, significant portions might well stand — a terrifying prospect for those of us whose sense of self and security is implicated.
That the president ordered such a document drafted or even considered this document — and sent it to agencies to review — is itself a devastating blow. Were Trump to sign this order or any single provision of it, and Congress to fail to override the order with a two-thirds majority, that harm would be magnified. For the judiciary, the third branch, to allow any part of it to stand would be the coup de grâce — confirmation that the Culture Wars are still raging, and that those who favor civil rights protections are losing.