Analysis Law and Policy

Trump’s Religious Imposition Order Worse Than Advertised

Jessica Mason Pieklo

The religious imposition executive order released Thursday does a lot more than lift restrictions on political speech by churches. It sets the stage for wide-scale LGBTQ discrimination.

President Donald Trump’s signing on Thursday of his religious imposition executive order (EO) was light and jovial, masking the very real harm it is about to unleash.

The bullet points released by the administration suggest the order is a scaled-down version of the one that leaked earlier this year. That version contained very detailed language largely expanding corporate religious rights and seemingly granting individuals and businesses the right to discriminate against LGBTQ people and others on the basis of a religious or moral objection. The order Trump signed today does not contain that language. But it doesn’t leave it out, either.

In some ways, the executive order Trump signed is more devious than the one leaked in February. It’s full of coded language likely meant to appease moderates alarmed by the extent to which the leaked version would openly discriminate against the LGBTQ population. That coded language, however, doesn’t prevent the kind of discrimination civil rights advocates were worried about with the first version. The Johnson Amendment revocation is new too. That addition is like an extra gift to religious conservatives demanding full-stop legal protections from complying with civil rights laws, as the amendment barred religiously affiliated charities from openly making political endorsements or encouraging voters to support the organization’s candidate of choice.

The contrast between the pageant-like ceremony in the Rose Garden and the dangerous nature of the actual signed order was not surprising, given the administration’s track record. But this tactic should not be overlooked, as it will play a crucial role in future efforts to blur the lines between church and state.

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From start to finish, Trump and his crew treated the entire process like a spectacle.

First the White House sent out Vice President Mike Pence the night before as a warm-up act. At the Susan B. Anthony List Campaign for Life Gala on Wednesday night, Pence addressed anti-abortion activists and applauded the administration’s efforts to pack its staff with opponents of abortion and contraception.

Then there was the signing ceremony at the White House Rose Garden. Trump joked with the audience while flanked by some of the Little Sisters of the Poor and their lawyers, using them as props in his campaign to destroy access to comprehensive health insurance coverage to thousands through repealing the birth control benefit in the Affordable Care Act (ACA). The Little Sisters, after all, launched a lawsuit in 2013 challenging the accommodation process to the requirement that some insurers cover contraception as part of standard health employee insurance packages. They launched this lawsuit despite having no legal obligation to comply with the requirement, a point that rarely mattered because conservatives did such a good job getting their supporters to see the case as the Obama administration forcing nuns to hand out birth control pills.    

“And we know all too well the attacks against the Little Sisters of the Poor,” Trump said to a round of applause in the Rose Garden. “Incredible nuns who care for the sick, the elderly, and the forgotten. Where are they, by the way? Where are they? Could you stand, sisters? Stand. Come on up here, sister. Come on up. Right? Come on up.”

After giving his shout out to the nuns and inviting them to the stage, Trump congratulated them on “winning” their fight against the benefit with his executing the executive order. “Congratulations, they sort of just won a lawsuit,” Trump said to the audience. “That was pretty good. That’s a good way of doing it.”

To be clear, the only way the Little Sisters would win their legal challenge against the birth control benefit is if a federal court says they do and the Trump administration successfully unwinds the entire package. Even with Health and Human Services Secretary Tom Price promising his agency will immediately get to work unwinding the administrative rules keeping the benefit in place, the Little Sisters have a ways to go yet. But this is an administration that defines losing as winning, so Trump framing this as a litigation victory should hardly come as a surprise.

Trump’s praise of the litigation continued. “You had good lawyers?” Trump asked. “Where are your lawyers? Stand up. Come on, stand up. Good job. Do you mind if I use your lawyers? I could use some good lawyers too”

That last line got a lot of laughs. Too bad there’s nothing funny about the executive order unleashed.

Here’s the actual text of the order.

On calls with reporters and during the signing ceremony Trump and his officials insisted the EO did only three things: lift restrictions on churches from engaging in political speech under the Johnson Amendment; relieve the “regulatory burden” organizations like the Little Sisters of the Poor were exposed to under the birth control benefit in the ACA, otherwise known as Obamacare; and broadly protect the religious rights of all Americans.

The order released Thursday has the potential to do much more than promised.

Section 1 of the order states that “[fe]deral law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.”

The “participate fully in civic life without undue interference by the Federal Government” could sound familiar. It’s a talking point used by religious conservatives to push back against having to comply with non-discrimination laws like Title VII of the Civil Rights Act and Title IX of the Education Amendments Act of 1972. Religious conservatives argue they have a free exercise right to not be obligated to provide services to LGBTQ people like issuing marriage certificates or recognizing same-sex marriage rights generally, for example, because their religious beliefs dictate that marriage is only acceptable between members of the opposite sex. By stating that federal law “protects” this right, the Trump administration is signaling not just that it stands with conservatives in this bigotry, but that is willing to go a step further and enforce religious objections at the expense of civil rights laws and the U.S. Constitution’s equal protection and due process guarantees.

Alone, Section 1 does nothing immediately except signal the direction civil rights policy and protections are headed under Trump. Although this section lacks the express language permitting anti-LGBTQ discrimination the way the leaked draft did, this vague language endorses the same discriminatory intent. There’s every reason the Republican-controlled Congress and the federal agencies will follow up and act on it.

Section 2 of the order contains its own concerns. Ostensibly this is the section that removes the Johnson Amendment restrictions. Those prohibit tax-exempt religious organizations from some direct political activity. Removing the Johnson Amendment’s prohibition was a Trump campaign promise. On Thursday he made good on it and so much more.

“All executive departments and agencies … shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.”

Prior to the election, Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) sent a letter to then-Attorney General Loretta Lynch. That letter complained that the Department of Justice was too focused on investigations of abortion clinic harassment and violence under the Federal Access to Clinics (FACE) Act, the federal law enacted in 1994 following an escalation of violence that culminated in the murder of abortion provider Dr. David Gunn by an anti-abortion extremist. Anti-abortion activists have long complained that laws like FACE as well as state- and municipal-level abortion clinic protections infringe on their First Amendment rights of protest and speech. Even the Supreme Court has bought this argument thanks to another well-chosen plaintiff in McCullen v. Coakley, the challenge to a Massachusetts buffer zone law brought not by Abolish Human Abortion protesters but instead by self-proclaimed “plump grandmas.”

With Attorney General Jeff Sessions at the helm of the Department of Justice, advocates had plenty of reason to be worried his Justice Department would disregard abortion violence and ignore the FACE Act. Trump’s administrative order Thursday certainly suggests that is a possibility. And with threats to clinics and providers on the rise again, this language is cause for concern.

Trump is not only empowering the Internal Revenue Service and other federal agencies to exercise the greatest prosecutorial discretion in ignoring Johnson Amendment violations until Congress can repeal them. He is also emboldening clinic protesters to test the very limits of the law when it comes to clinic violence.

The same is true with regard to so-called conversion therapy techniques used against LGBTQ youth by the religious right. Conservatives have challenged laws in places like California and New Jersey that ban the abusive practice on the grounds that those laws interfere with religious conservatives’ religious exercise rights under the First Amendment. Conservatives have lost that fight in the courts, and so far the Supreme Court has stayed out of it. Trump’s order Thursday has the potential to ratchet up that fight as well.

Section 3 is exactly as promised, a full-scale attack on preventive health-care services under the ACA. It may be the only transparent part of the administration’s order.

And then there is Section 4, which empowers Attorney General Sessions to issue agency guidance interpreting “religious liberty protections in Federal law.”

Under the Obama administration federal agencies were key in advancing LGBTQ rights. Those agencies were among the first to recognize the rights of transgender employees to use a restroom that aligns with their gender identity, for example. That agency action was important because it helped direct federal law in the courts. Naturally conservatives were enraged by these actions. On Thursday, Trump’s order took a critical step in undoing them.

What that means in the immediate is any LGBTQ federal contractors and employees will likely lose employment and related protections extended under the Obama administration. It could also mean the ability of federal employees and contractors to raise their own religious objections to non-discrimination laws will be expanded.

At this point we wait and see.

One thing is certain, though. Thursday’s order is not the scaled back version of a religious imposition order that was promised or advertised. It was a bait-and-switch by the administration and its effects will be long lasting.

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