If the rumors are true, an already rough 2017 is about to get infinitely worse. Weekly political publication The Nation has just leaked a draft of an executive order that would essentially create a loophole making it legal to broadly discriminate against women, members of the LGBTQ+ community and even children.
ALL THE DETAILS
The order (which you can read here) is titled, “Establishing a Government-Wide Initiative to Respect Religious Freedom.” Basically, it allows religious organizations (which, according to the order, actually “encompass[es] any organization”) to legally discriminate against employees if something is against the business owner’s religion. Like most of this document’s wording though, the definition of “religion” is incredibly broad and leaves a lot up for interpretation. In this case, “religion” is defined to include, “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.” Basically, that’s a fancy way of saying if you “believe” in something it can be classified as a “religious belief.”
A little more from the EO draft: “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.”
HOW IT COULD BE USED
Under this EO, employers wouldn’t be required to cover birth control, abortion costs or any type of preventative care under the ACA if it violates their religion. They could legally refuse to hire or even fire an LGBTQ+ person if their sexual orientation defies the business owner’s religion. It could allow federal employees to refuse to process applications (or even respond to questions) from individuals seeking out benefits related to same-sex marriage rights.
Furthermore, the EO would keep the US Health and Human Services Department from “taking any adverse action” against federally funded child-welfare organizations. Meaning adoption centers and foster/family support services could legally refuse necessary care for a child who identifies as LGBTQ+.
HOW IT COULD BE FOUGHT
Throughout The Nation‘s in-depth piece on the leaked draft, multiple experts mention that this EO would potentially violate the Establishment Clause and the First Amendment by giving special government protection and power to people who hold a specific set of beliefs.
Marty Lederman, a professor at Georgetown University Law Center and expert on separation of church and state, tells The Nation, “This executive order would appear to require agencies to provide extensive exemptions from a staggering number of federal laws—without regard to whether such laws substantially burden religious exercise.” He goes on to say, “The exemptions would raise serious First Amendment questions, as well, because they would go far beyond what the Supreme Court has identified as the limits of permissive religious accommodations.”
HOW supreme court nominee NEIL GORSUCH FITS INTO THIS
It’s worth quickly mentioning that the beliefs expressed in this draft are eerily similar to the beliefs Trump’s Supreme Court nominee Neil Gorsuch has expressed in cases in the past. While he has not publicly commented on his stance on abortion or LGBTQ+ rights, he has a proven history of favoring religious freedom. In fact, his biggest case is basically a foreshadowing of what could become the norm under this EO.
That case involved the craft supply store Hobby Lobby back in 2012. Under Obama’s ACA, Hobby Lobby was required to cover certain birth control options for their employees. The business fought this mandatory condition, as it is run by Christian couple David and Barbara Green, who are religiously opposed to contraception. Gorsuch was in the 5-3 majority that sided with Hobby Lobby. The case eventually went on to the Supreme Court, which agreed with that majority.
BUT IS THIS EVEN LEGIT?
The four-page draft is said to currently be circulating internally among White House staff members. When asked about the EO on Monday, Press Secretary Sean Spicer responded, “I’m not getting ahead of the executive orders that we may or may not issue.” However, a White House official did verify to ABC that this is a real EO draft going around. The unnamed official told the publication, “The draft appears to be among the hundreds of possible executive orders that are circulating — drafted by the Trump transition team, the White House policy team or by outside groups — and that not all reflect administration.”
Whether this is actually something that will be put into place or not remains unclear. But it is worth noting that the now-viral Twitter account Rogue POTUS Staff (rumored to be secretly run by members of President Trump’s staff) has tweeted confirmation that rumors of an anti-LGBT EO are true. Now, this is essentially an unverified account confirming an unverified EO, so take that confirmation with a grain of salt. However, Rogue POTUS Staff did accurately leak the news that Neil Gorsuch would be nominated as Trump’s Supreme Court nominee before that was officially announced, so they have been right before.
Here’s to hoping this draft is one of the “hundreds of possible executive orders” that not only get tossed out but shredded.
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