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Trump's draft order on religious freedom prompts praise, concern and confusion

POSTED: March 14, 2017 9:01 a.m.
Kelsey Dallas/

A leaked copy of a draft of an executive order on religious freedom was released by The Nation on Wednesday that would provide broad protections Trump promised to religious conservative supporters.

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A leaked draft of an executive order on religious freedom protections has LGBT rights advocates concerned, while legal scholars disagree on whether the potential policy simply clarifies legal gray areas or makes promises that President Donald Trump cannot legally keep.

If the draft version were signed, it would enable religiously affiliated federal contractors to apply a religious test to job applicants, create broader exemptions to the Affordable Care Act's contraception mandate, ensure the tax exempt status of religious nonprofits and enable religiously affiliated social service providers to limit clients to those who adhere to the organization's religious convictions.

"The executive order is good, lawful public policy," Ryan Anderson, a senior research fellow with The Heritage Foundation, wrote for The Daily Signal. "These protections take nothing away from anyone — they simply ensure that the public square remains open to all religious voices, even when those voices diverge from the government's view on contested questions."

Robert Tuttle, a professor of law and religion at George Washington University, shared an alternate view, arguing that the executive order promises religious liberty rights that the Constitution and recent Supreme Court rulings don't support.

"This is not an accurate statement of what the First Amendment protects. This is simply what the Trump administration wishes the First Amendment would protect," he said.

Other observers occupy a middle ground, acknowledging legal confusion that could stem from the executive order but disagreeing with those who describe it as unlawful.

"Mostly, it implements existing religious liberty legislation and resolves some of the ambiguities at the margins in favor of protection," wrote Douglas Laycock, a distinguished professor of law at the University of Virginia, in an email. "The sweeping denunciations of this draft are way overdone."

Religious freedom scholars do agree on the leaked executive order's key objective: protecting Americans whose religious beliefs lead them to object to same-sex marriage, oppose abortion rights and define gender as someone's biological sex at or before birth.

"Those are the beliefs that this is designed to protect," said Chip Lupu, a recently retired professor of law at George Washington University.

The future of the executive order is unclear, and White House officials told ABC News that the draft is one of many circulating among administration leaders. It doesn't necessarily reflect current policy goals, they said.

"We do not have plans to sign anything at this time but will let you know when we have any updates," said deputy press secretary Sarah Huckabee Sanders to ABC News.

But just in case action does come soon, here's an overview of some of the leaked executive order's religious freedom protections, as well as an analysis of the legal conflicts it could create:

Federal contractors

Trump angered some of his religious conservative supporters earlier this week by keeping an Obama administration executive order in place that prohibits religiously affiliated federal contractors from discriminating on the basis of sexual orientation and gender identity when hiring employees.

However, the leaked draft of his religious freedom executive order would temper the previous administration's directive.

"Section 4(d) (of the draft) makes clear what is currently disputed: religious organizations with government contracts can hire on the basis of compliance with religious tenets and not just claimed religious affiliation," Laycock said.

In other words, the new executive order wouldn't overturn Obama's order, but it would weaken its reach.

"The (Obama administration) order isn't gone. They just essentially said, 'We're not going to force you to comply with it,'" Lupu said.

This development would be one of the most notable outcomes of the Trump administration's executive order, if it was kept in the final draft, he added.

"That's a place where this would have some real bite, some impact on the situations of the moment," Lupu said.

Religious exemptions

In addition to weighing in on rules for federal contractors, the executive order draft addresses ongoing religious freedom conflict stemming from the Affordable Care Act and other federal laws.

If signed, this religious freedom executive order would exempt "all persons and religious organizations that object to complying" with the ACA's contraception mandate, which spawned more than 100 lawsuits against the government by religious objectors.

The draft order would render moot accommodations the Obama administration implemented to prevent religiously affiliated employers from directly providing birth control in their health care plans.

"They're just going to get exempted entirely the way houses of worship do," Lupu said.

Additionally, the executive order would protect a church's tax exempt status even when faith leaders speak out on political races. Trump told a high-profile gathering of faith leaders, politicians and dignitaries Thursday that he would follow through on a campaign promise to repeal an IRS rule that prohibits churches and other nonprofits from endorsing or campaigning for political candidates.

"I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution," Trump said during remarks at the National Prayer Breakfast.

He added that “freedom of religion is a sacred right, but it is under serious threat.”

But Lupu said that this protection, detailed in the executive order draft, is seemingly unnecessary given that no houses of worship are currently threatened with the loss of tax exemption.

Laycock offered a similar assessment of the executive order's instructions to the government agencies that intersect with religiously affiliated colleges and universities. It tells these agencies to "not recognize any decisions or findings made by any federally recognized accrediting body" that were based on an institution's stances on same-sex marriage, transgender students and abortion.

"No religious school has ever been disaccredited because of its policies on sexual morality, and with so many secular schools, it is hard to imagine a compelling interest in disaccrediting the religious ones," he said. "So this resolves the occasional threats that have been made to BYU and other places, but it doesn’t change anything that has actually happened."

Conflicts with state law

In addition to affecting federal efforts to balance religious freedom protections with LGBT rights, this executive order would disrupt state-level debates, according to legal scholars.

Executive orders don't override state statutes, such as the Utah Compromise, but they do regulate federal funds. In other words, the Trump administration can't guarantee that religious small-business owners wouldn't be required to participate in same-sex wedding ceremonies, but it could shield religious adoption agencies from state LGBT nondiscrimination laws.

"If localities or states have rules that prohibit (LGBT) discrimination, the executive order can't do anything about them, except when it comes to the receipt of federal grants or contracts. We're talking about things like the provision of child care services, adoption placement services and foster care placements," Tuttle said.

Those who push for legislation that balances religious freedom with LGBT rights might struggle to bring religious voices to the negotiation table if they feel the government is firmly on their side, he added.

"I don't think (this executive order) would short-circuit conversations. It would tilt the conversation," Tuttle said.

But LGBT rights activists are speaking out against the leaked draft, arguing that its broad religious freedom protections amount to a license to discriminate against others who don't follow a particular faith's teachings and that it will harm many Americans.

Conservative Christians "would say this is a nondiscrimination order," said Jennifer Pizer, senior counsel and law and policy director for Lamda Legal, to The Nation. "We disagree. We would say being denied the ability to discriminate against others is not discrimination against you."

Establishment clause

A major point of conflict between advocates of religious freedom and LGBT rights is recognizing same-sex marriages since the Supreme Court legalized such unions in 2015. One of the key themes of the leaked executive order draft is that people whose faith teaches that marriage should only be between one man and one woman should be able to exercise that belief in public and in private.

Section 3b reads, "Persons and organizations do not forfeit their religious freedom 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."

The provision "makes good on several promises then-candidate Trump made to his supporters" who felt under attack by the Obama administration, Anderson wrote.

However, Tuttle and Lupu said that the executive order's defense of belief in traditional marriage could be its core problem.

"We've argued that (policies like this) violate the establishment clause by privileging one set of religious beliefs over others by offering protection to one view, rather than all views you might hold on these issues," Tuttle said.

Laycock acknowledged the potential for establishment clause concerns, but noted that it would be hard to make a case that singles out this proposal among other laws that protect a specific set of beliefs or practices.

"There are many specific exemptions for specific religious practices on the books, and no one seriously thinks they are all unconstitutional. So the mere fact that it provides particularized protection for one set of beliefs and practices is not enough," he said.

"It has to go too far in some way, and we don’t have cases giving any clarity on how far is too far," Laycock added. "This (executive order) may go too far in a few applications, but I think not in general, and I don’t think it is unconstitutional on its face."

Looking ahead

The draft, which raises more questions than answers, needs some fine-tuning, legal scholars said.

"It doesn't sound like it's written by somebody who actually understands the intersection of executive power and existing legislation. That's the job of the legal counsel to help reconcile that," Tuttle said.

Anderson joined with other more conservative religious freedom advocates in calling for the executive order to be signed as is. He criticized efforts to undermine the draft.

"The president should not cave," he wrote. "He should stand up to the liberal outrage and hostility to ordinary American values that fueled his rise in the first place."

Even if the order were signed in draft form, it's ultimate impact would be hard to determine, because individual federal agencies would have to decide how to balance its protections with current statutes, Tuttle said.

"The executive order is broad, problematically broad. In order to understand exactly what it means and does, you have to first see the final order and see what agencies would do in response," he said. "They're constrained by statutes."
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