US magazine The Nation and The Investigative Fund have uncovered a leaked copy of a draft executive order that will essentially legalise discrimination against the LGBTQ+ community.
The draft order
The order – “Establishing a Government-Wide Initiative to Respect Religious Freedom” – effectively legalises discrimination.
The Nation reported that the draft has essentially broadened the definition of a religious organisation. It would include those that protect “religious freedom” in every walk of life, even:
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 order will entitle organisations and individuals working within organisations to discriminate if they have so-called religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity. It could also prevent women’s access to contraception and abortion through the Affordable Care Act (Obamacare). It will also protect the tax exempt status of those that do so:
LEAKED DRAFT of @realDonaldTrump's #ReligiousFreedom anti-LGBT executive order, currently in circulation. DO NOT WAIT. ACT NOW. 🏳️🌈 pic.twitter.com/YTTxQdA36E
— Matthew Schueller (@booshoe37) February 2, 2017
Experts say it violates the law
But The Nation also notes that sanctioning such directives is not within the gift of the executive, and it may be violating both the First Amendment of the US Constitution and federal law.
One professor at Georgetown University said that they go:
far beyond what the Supreme Court has identified as the limits of permissive religious accommodations.
He further said it would be:
astonishing if the Office of Legal Counsel certifies the legality of this blunderbuss order.
Ira Lupus, also from Georgetown University, said the order’s language was “sweeping”, expanding the definition of religious exercise 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”.
This privileges a certain set of beliefs about sexual orientation and gender identity beliefs prevalent among conservative Catholics and evangelical Christians. She said:
It raises a big question about whether the Constitution or the RFRA authorizes the president to grant religious freedom in such a broad way.
Here's what @ShannonMinter @NCLRights says about Trump's draft Anti-LGBT E.O. on religious "freedom" pic.twitter.com/4WBILYWWTq
— Brian Krassenstein (@krassenstein) February 2, 2017
The impact
Lupus demonstrates the impact such an order might have. It may, for example, “invite federal employees to refuse on religious grounds to process applications or respond to questions from those whose benefits depend on same sex marriages.”
While others could technically fill the gap if they didn’t, it could “lead to a situation where marriage equality was being de facto undermined by federal employees, especially in religiously conservative communities.”
It could also bar the Department of Health from taking any adverse action against federally funded child welfare organisations that deny their services to people “due to a conflict with the organization’s religious beliefs”.
Jenny Pizer, a senior counsel and a director for Lambda Legal, said it was:
a license to discriminate with public money in a series of contexts in which people tend to be vulnerable…
This means they can refuse LGBTQ+ children in foster care the necessary support. They can also refuse to refer them to another agency “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”.
In addition, it could prevent same-sex couples from adopting.
Such a gap in protection is unprecedented in American law and policy making.
The White House response
The White House did not respond for comment. But on the morning of 31 January, it released a statement that stressed Trump’s support for the LGBTQ+ community. And that he had no plans to overturn Barack Obama’s executive order on protecting federal LGBTQ+ contractors from discrimination. The government currently awards thousands of federal contracts to religious organisations for services to veterans, refugees, prison inmates, and other vulnerable groups. Experts, however, say that Trump’s new order flies in the face of his recent comments.
The leaked draft is another potential act of Trump’s that discriminates against certain groups. First it was Muslims. Now, the LGBTQ+ community could face unconstitutional treatment. Who next?
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