The Religious Liberty Front Line Today
We cannot sanction racism, sexism, homophobia and other forms of discrimination under the guise of “religious freedom.”
— Bernie Sanders (@SenSanders) February 3, 2017
Got that? Religious freedom is only important if the religion in question cannot be said to be racist, sexist, or homophobic. Sen. Sanders, then, has no interest in protecting orthodox Christians, Orthodox Jews, Muslims, or any believer who is not a progressive. It’s as if the First Amendment only applied to speech popular with progressives.
What if this is the view of President Trump as well?
This week, there has been a lot of commentary about a draft Executive Order concerning religious liberty. Progressives have been very, very worried about it. Sarah Posner at The Nation characterizes it this way:
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 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.
(You can read the entire draft order at the link.)
Here are some of the things the religious freedom executive order would do:
It tells the entire federal government to respect federal statutes and Supreme Court decisions that make clear the free exercise of religion applies to all people, of all faiths, in all places, and at all times—that it is not merely the freedom to worship.
It notes that religious organizations include all organizations operated by religious principles, not just houses of worship or charities. And it follows the Religious Freedom Restoration Act in saying that religious exercise “includes all aspects of religious observance and practice,” not just those absolutely required by a faith.
It instructs all agencies of the federal government, “to the greatest extent practicable and permitted by law,” to reasonably accommodate the religion of federal employees, as required by Title VII of the Civil Rights Act of 1964 and the Religious Freedom Restoration Act.
It instructs the secretaries of health and human services, labor, and treasury to finally grant relief to the Little Sisters of the Poor and others who weren’t exempted from the Obamacare abortifacient and contraception mandate.
It instructs the secretary of health and human services to ensure that all citizens have the ability to purchase health care plans through Obamacare that do not cover abortion or subsidize plans that do.
It instructs the secretary of health and human services to ensure that the federal government does not discriminate against child welfare providers, such as foster care and adoption services, based on the organization’s religious beliefs.
It adopts the Russell Amendment and instructs all agencies of the federal government to provide protections and exemptions consistent with the Civil Rights Act and Americans with Disabilities Act to all religious organizations that contract with the federal government or receive grants.
It instructs the secretary of the treasury to ensure that it does not revoke nonprofit tax status because a religious organization’s ordinary religious speech deals with politics, or because it speaks or acts on the belief that marriage is the union of husband and wife, that a person’s sex is based on immutable biology, or that life begins at conception.
It instructs all agencies of the federal government to refuse to recognize any decision by a federally recognized accrediting body that revokes or denies accreditation to an organization because of such beliefs.
It instructs all agencies that they may not take adverse action against federal employees, contractors, or grantees because of their speech about marriage outside of their employment, contract, or grant, and that agencies shall reasonably accommodate such beliefs inside of employment, contract, or grant.
Today, Politico reports that Jared and Ivanka have been lobbying the president to quash this thing — and apparently succeeded Excerpt:
Jared Kushner and Ivanka Trump helped lead the charge to scuttle a draft executive order that would have overturned Obama-era enforcements of LGBT rights in the workplace, multiple sources with knowledge of the situation told POLITICO.
A draft executive order on LGBT rights that outlines how to roll back former President Barack Obama’s protections and expand legal exemptions based on religious beliefs has been circulating among journalists and worried progressive groups this week.
But two sources close to Kushner and Ivanka Trump, who have a record of supporting gay rights, said the couple favored putting out a clear statement from the president, promising to uphold the 2014 Obama executive order and stopping the momentum for the turnaround in its tracks.
On Tuesday night, the White House released a statement saying that “President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community. President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election.”
“The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump,” the statement continued.
The story goes on to say that religious conservative leaders still think something good is going to come from the Trump White House. Good luck with that.
When President Obama issued this order, he linked it to congressional efforts to pass an Employment Non-Discrimination Act (ENDA), a federal measure that Democrats have introduced repeatedly in Congress but until now has failed to pass. That measure would establish LGBT as a protected class nationwide, and it is clear that President Obama intended to achieve the same result insofar as he could through unilateral executive authority.
That President Trump seems to be willing to use his executive authority to affirm President Obama’s order and to recognize LGBT as a protected class is a very big deal and a major departure for a Republican president. It raises the question whether President Trump would support a federal SOGI law like ENDA—something that activists have been trying to get passed for years. What if President Trump gets a Democratic Congress in 2018 that passes ENDA? Would President sign such a measure or veto it? Such a law would be catastrophic for religious liberty.
Social conservatives need to be on the alert. They need to be aware that the administration may use chaos to distract attention from substantive policy changes that test the allegiance of constituencies that voted for President Trump. This seems particularly relevant to religious conservatives: a constituency that is particularly liable to be targeted with symbolic or substantive moves that obscure additional, and at times more concerning, changes.
In a follow-up post today, written in light of the Politico report, Burk adds:
I don’t think any Republican president has ever issued such a bald endorsement of gay rights. This is a first. But even more important than the rhetoric is the substance of Obama’s 2014 order that President Trump now says he supports. The order establishes LGBT as a protected class insofar as federal hiring and contracts are concerned. And now it is being adopted by a Republican president. That is a first as well.
Religious conservatives ought to be at Defcon 1 right now, but they are not. Everyone seems so distracted by the refugee order and the nomination of Neil Gorsuch that they are missing a looming threat. And it is one that they cannot afford to ignore.
Yes. This. Trump is neither a religious conservative or a religious anything. Best not to forget that. The crazy thing is that most LGBT voters will never, ever give Trump credit. It’s as if they are so blinded by the politics of intersectionality that they cannot see that he is on their side. It’s also pretty crazy that more than a few Christians, blinded by the politics of Republican intersectionality (that is, assuming that Republicans favor religious conservatives) that they won’t let themselves see what’s happening either.
UPDATE: Ryan Anderson clarifies (on his Twitter feed) that Executive Order that Trump’s refusing to sign an EO overturning Obama’s EO does not mean that he won’t sign the broader religious liberty draft EO, which covers a lot more than Obama’s EO. That’s technically true, but if he’s disinclined to rescind the Obama EO, I don’t know why he would sign the other one — which, presumably, Jared and Ivanka also oppose, on the same grounds. Then again, one should not expect consistency with Donald Trump. If the president declines to sign the broad religious liberty draft EO, that sends a terrible signal to religious liberty advocates. Church folks, are you paying attention? You had better be. Because right now, based on Tuesday’s action (or lack thereof), it’s looking like President Trump is more in line with Bernie Sanders on religious liberty than with a huge number of the people who put him in office.