About a month ago, it came as a shock to no one when media outlets began reporting about a leaked draft order from the White House that contained legislation to ‘protect religious freedoms’ by granting religious exemptions to anti-discrimination laws. As if in honour of its one month anniversary, the Trump administration has announced that they’re withdrawing Obama’s guidelines on how American schools should accommodate transgender students. What would America look like for LGBTQ+ Americans should this draft order—which White House press secretary Melissa McCarth- sorry, Sean Spicer refuses to confirm or deny—becomes federal law?
The first section of the leaked draft outlines the constitutional backing for such an executive order to come to fruition. For a conservative government, they sure have a liberal interpretation of the Constitution. The First Amendment prevents the government from creating a ‘state religion,’ as well as from creating an official preference for one religion over another. But the order claims that the Constitution guarantees Americans the right to veto their participation in activities that violate their consciences. Considering the nature of this order, it’s safe to assume that their interpretation includes activities which would technically be in violation of other Amendments in the Constitution. So, that’s cool.
The second section goes on to provide some definitions which are pretty fucking broad and simultaneously terrifying considering the amount of stretch that Trump wants religious freedom claims to have. The order defines a ‘religious exercise’ as follows:
“’Religious exercise’ includes 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.”
So, what does that mean? Basically, as long as your actions are motivated by a religious belief, even if your faith system considers such an act to be completely unnecessary, you’re good to go. For Christian’s, that whole ‘love thy neighbour’ thing becomes officially irrelevant – even though it is literally something that Jesus told you to do in the Bible.
Additionally, ‘religious organizations’ are now basically any organization that wants to claim religious freedom, regardless of their purpose, exemption status or whether they’re affiliated with an established church or house of worship. It is truly Chick-Fil-A’s day to shine.
Now we’re on to the third section, which deals with principles and policy making criteria. This is the part where things start to get really gross (just joking, this whole draft order is garbage). In this part, we find out all of the considerations of religious freedom one must consider if they want to formulate any type of legal ruling. Firstly, religious freedom is for everyone, anytime, anywhere. That’s not bad, until we get to the second criterion, in which people and organizations don’t have to leave their gods at the door when they’re performing activities like providing social services, education, healthcare, hiring employees or doing business. This draft order considers it perfectly legal for people to make decisions about basic human rights based on their religious beliefs. The third criterion requires federal agencies to accommodate for federal employees’ religions by not creating any rules that would potentially restrict an employee’s freedom, except in cases where doing so would jeopardize government activities – the application of which is arbitrary. I’ll let you chew on that one for a bit.
The fourth section outlines the responsibilities of specific government agencies as they avoid potential violations of religious freedom. It’s pretty lengthy, so I’ll cover some key highlights. Preventative services that are typically required by the Affordable Care Act (which is still in effect because no one who’s currently in the White House thought beyond step 1 of their Obamacare smear campaign) can now be opted out of if an organization feels religiously violated. Furthermore, organizations responsible for adoption or fostering services could now pick and choose who they want to provide to and which children they want to take in on the basis of religious freedom. Oh, and the Department of Treasury would no longer be allowed to strip tax-exemption status or impose tax penalties on religious organizations that decide they don’t want to comply with federal regulations regarding same-sex marriage. The real kicker is the last provision, where the Attorney General and the Department of Justice would have to create a Trump-esque Justice League to investigate claims of religious freedoms being violated.
The fifth, and last section is basic provisions. They’re pretty boring and, to my understanding, are pretty standard for most laws.
So, what would the passage of a law like this mean for American LGBTQ+ citizens? Essentially, the legalization of homophobia, transphobia and intersectional forms of discrimination. If you want to help, consider making a donation to the American Civil Liberties Union. If you are an American, write to your member of Congress. Most importantly, do not ever stop speaking up. It’s becoming evident that, under this administration, there could be a day in the near future where simply vocalizing our outrage is deemed illegal.