Disruptive Dissertation: So-called 'religious freedom' order would allow discrimination based on sexuality and gender

Thursday, February 2, 2017

So-called 'religious freedom' order would allow discrimination based on sexuality and gender

On Jan. 30, 2017, LGBTQ Nation claimed several anonymous sources were reporting a proposed executive order by the Trump administration that "will allow for discrimination in a number of areas, including employment, social services, business, and adoption." White House Press Secretary Sean Spicer, asked that same day by a reporter if an executive order to curtail LGBT rights would be forthcoming, said only, “I’m not getting ahead of the executive orders that we may or may not issue...we have nothing on that front now.” Deputy Press Secretary Stephanie Grisham reiterated his position, writing that "we don’t want to get ahead of the EO/As [executive orders and actions] that are coming, but that isn’t the plan at this time."

It wasn't true. There was indeed a plan in the works. Two days later, a draft of just such an executive order was leaked to the press. It is four pages long, anonymously written, and titled “Establishing a Government-Wide Initiative to Respect Religious Freedom.” The misnomer "religious freedom" here means that people who claim certain religious beliefs, beliefs that just so happen to be common tamong conservative Christians, would be legally free to express their disapproval of others' sexuality by discriminating against them. According to the proposed executive order, the following "religious" beliefs would be protected when they are expressed in words, actions, or refusals: “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.” Individuals and organizations employed by the federal government would have such beliefs "reasonably accomodate[d]" within the scope of their federal employment assignment, and federal agencies could not subject them to any "adverse action" in response to such beliefs expressed outside of the scope of their assignment. Additionally, the status of religious organizations — here defined to include "closely held for-profit corporations, operated for a religious purpose, even if its purpose is not exclusively religious" — must not be in any way "disadvantage[d]" in response to such beliefs.

“We do not have plans to sign anything at this time," White House spokeswoman Sarah Huckabee Sanders told ABC News on Feb. 1. This is, of course, the same White House that had just denied that the proposal existed at all. A White House official acknowledged on Feb. 2 that hundreds of potential executive orders have been drafted and that this is indeed one of them.

Sarah Posner wrote for The Nation: "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."