Leaked Executive Order Draft Could ‘Legalize Discrimination’

By Kenrya Rankin Feb 03, 2017

A leaked draft of an upcoming Trump executive order could effectively make it legal for an organization to discriminate against anyone it feels is an affront to its religious sensibility on the basis of gender, sexuality, pregnancy, marital and familial status.

Obtained by the The Nation and The Investigative Fund, the executive order draft is titled “Establishing a Government-Wide Initiative to Respect Religious Freedom.” In an article posted yesterday (February 1), writer Sarah Posner says that the document seeks to broaden the definition of a religious group to cover “any organization, including closely held for-profit corporations.” It also provides for “religious freedom” as it relates to a wide variety of tasks, including, “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.”

If these drafted guidelines make it into the final executive order, it would be legal for people, groups and companies to claim a religious objection to providing health and social services to women, people in the LGBTQ community, people seeking abortions, people who have kids out of wedlock and even children—and reap tax exempt status, too.

From the article:

“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,” said Marty Lederman, a professor at Georgetown University Law Center and an expert on church-state separation and religious freedom.

The exemptions, Lederman said, could themselves violate federal law or license individuals and private parties to violate federal law. “Moreover,” he added, “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.” It would be “astonishing,” he said, “if the Office of Legal Counsel certifies the legality of this blunderbuss order.” …

[Lambda Legal’s Jenny] Pizer said this language constitutes “a license to discriminate with public money in a series of contexts in which people tend to be vulnerable,” such as against LGBT children in foster care, which is federally funded. More broadly, she said, it would permit organizations receiving federal grants or contracts to provide child welfare services not only to refuse necessary care but to refuse even to “refer the child to another agency or setting 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.” Even during the George W. Bush administration, she noted, “there were protections in executive orders that beneficiaries of grantees and contractors were not to be discriminated against on the basis of sexual orientation and gender identity.”

White House officials told ABC News that the draft is one of “hundreds” of possible drafted orders. “We do not have plans to sign anything at this time but will let you know when we have any updates,” Sarah Huckabee Sanders, a White House spokesperson, said.

Columbia Law School’s Center for Gender & Sexuality Law released a report on January 25 that concluded that these types of religious exemptions disproportionately impact families of color. According to the National Center for Health Statistics, 70 percent of Black children are born to unmarried parents—a status that an organization could cite as reason to withhold services, from healthcare to education. That percentage is 67 percent for Native Americans and 53 percent for Latinxs. It’s 35 percent for Whites.

“This report shows that policymakers across the nation are leveraging religion to push forward crude and discriminatory laws that impose extreme financial, dignitary and emotional harm on women of color and their families,” Kira Shepherd, of the school’s Public Rights Private Conscience Project, said in a statement about “Unmarried and Unprotected: How Religious Liberty Bills Harm Pregnant People, Families and Communities of Color.” “These laws could turn back the clock on some of the progress this country has made towards racial justice. They have the potential to take us back to a dark era where certain religious views were used as a justification for legal discrimination.”