On Thursday, May 2, the National Day of Prayer, Donald Trump is set to sign the anti-LGBTQ “religious liberty” executive order Christian conservatives have been begging for even since he took office.
The order will legalize anti-LGBTQ discrimination on the basis of what conservatives call “sincerely held religious beliefs.” A draft of the order was leaked to The Nation less than two weeks into Trump’s illegitimate presidency, and was immediately met with terror and anger from the LGBTQ community. The Nation‘s Sarah Posner wrote of the “sweeping” order:
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.”
Language in the draft document specifically protects the tax-exempt status of any organization that “believes, speaks, or acts (or declines to act) in accordance with the belief 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.”
The order is modeled after similar “religious freedom” bills legalizing anti-LGBTQ discrimination, including the one pushed by Vice President Mike Pence during his time as Governor of Indiana. Pence has been one of the top Christian conservatives in the White House pushing for this executive order.
The leaked draft, which the White House claimed to be “one of hundreds circulating,” was criticized by legal scholars not just for its bigotry, but for its illegality.
“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,” Georgetown University Law Center professor Marty Lederman told The Nation. “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.”
The Nation wrote that the order would likely violate both the Establishment Clause and Equal Protection Clause of the Constitution, just as a federal district court ruled last year that a similarly-worded Mississippi bill did.
The drafted order, in essence, was “religious freedom” legislation on steroids. It would allow any – yes, any – person or organization to discriminate against LGBTQ people in the United States without any interference whatsoever from the federal government. It went so far as to create a new group in the Department of Justice specifically to protect “religious freedom.” So if that provision is kept in the new order, Jeff Sessions’ already unjust Department of Justice will be tasked with enforcing discrimination across the country.
Apparently, however, following the legal critiques of the leaked draft, Pence and other Christian conservative policymakers have worked to reword the order so that it may pass muster in court. Nonetheless, its discriminatory intent cannot be erased, which is why the American Civil Liberties Union had already promised to fight the order in court. But even if a court rules against the order, as has been the case with several of Trump’s other executive orders, Trump and his colleagues could take it to the Supreme Court, where the ideological balance has been shifted right with Trump’s appointee Neil Gorsuch.
Regardless of what comes out of the executive order, this is yet another reminder of just how difficult the battle for LGBTQ and abortion rights will be under Trump and the GOP. With both Congress and the Oval Office against us, we must always be prepared to defend our humanity and our right to exist as ourselves.