We already knew that despite his claims on the campaign trail, Trump is no friend to LGBTQ people. And of course we already know that Mike Pence would just as soon hit us in the face with a sack of Bibles as make eye contact with us. So it’s not a surprise that Trump may be preparing a new executive order on “religious liberty” — not in the sense of actual religious liberty, but in the vein of the Religious Freedom Restoration Acts that empower people and organizations to deny access and services to LGBT people and others. The EO is assumed to be attributed to Mike Pence, an attempt to nationalize the similar religious liberty bill that he signed into law as governor of Indiana.
If reading the headlines on this feels like déjà vu, it’s because there was already one attempt at this bill. Back in February, a draft of a religious EO was leaked to the Nation. The language it included described alarmingly broad “religious exemptions,” and mirrors Pence’s original religious liberty law in Indiana in that it tries to reach beyond what even the many, many other religious liberty laws legislate.
Two years ago, ThinkProgress wrote of Pence’s Indiana bill that “…the bill was written differently from other RFRAs in a way that seems designed to enable discrimination. The bill specifically states that individuals who feel their religion has been burdened can find legal protection in the bill “regardless of whether the state or any other governmental entity is a party to the proceeding.” In fact, it is this very exception that makes Indiana’s RFRA, along with those newly proposed in several other states, a significant concern for the LGBT community.”
In February of this year, the Nation wrote of the leaked executive order draft that it “… 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.'” In short, both pieces of legislation have an air of Mike Pence about them. They’re intentionally pushing the borders of what “religious freedom” usually entails, broadening the privileges of the Christian right while gutting the rights of the marginalized.
In theory, the February executive order was withdrawn to be rewritten after it was received poorly. In actuality, however, Politico reports that “one influential conservative who saw the text said it hasn’t been dialed back much—if at all—since the February leak. ‘The language is very, very strong,’ the source said.”
Although the text of this draft of the EO hasn’t been released — and it’s totally possible it won’t be at all before it’s signed — GLAAD has already come out with a statement saying that this EO is “nothing more than a license to discriminate.” The ACLU has indicated that if the EO does constitute a “license to discriminate,” they’ll sue, following the thrust of their lawsuits against the multiple attempts at a Muslim ban.
But how would a federal EO that mimics state-level anti-gay RFRAs work, really, especially given the fact that many states have inclusive non-discrimination laws on the books? An executive order isn’t a law, really, but exists in a kind of netherworld between “legislation” and “guideline.” What would happen if a case went to court that pitted it against a nondiscrimination law? Well, 200+ members of Congress want to find out: they filed a bill yesterday to add sexual orientation and gender identity to the Civil Rights Act of 1964 — the Equality Act. Openly gay legislators Tammy Baldwin and Patrick Maloney were present at the introduction ceremony discussing the bill’s purpose, with Maloney saying “People will still discriminate if it’s illegal. But it should not be legal to discriminate.”
This isn’t the first time a similar attempt has been made; the Equal Rights Amendment to the Constitution, first introduced in 1923, would have ensured “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” a clause which some feel would provide some measure of legal protection to LGBT people in the same way that Title IX, which forbids discrimination on the basis of sex, is increasingly being used as a legal argument in defense of trans and gender nonconforming people. Almost 100 years later, the ERA still hasn’t been successfully ratified into the Constitution, although the amendment did see increased interest after Trump’s election and a campaign to revive it.
Passing the Equality Act is going to be a tough sell; the bill has only one Republican supporter, Rep. Ileana Ros-Lehtinen of Florida, who is set to retire soon. It’s by no means a sure or even probable thing. Even if it doesn’t pass into law, however, Trump’s prospective executive order still faces a hairy and confusing future. Language and interpretation of religious liberty laws is often vague, intentionally allowing for generous interpretation by conservative courts; if the unnamed sources on the new draft of the EO are to be believed, the language in this makes even broader room than usual. This means that how the EO actually works in concert with state laws and individual constitutional liberties would be up to states to decide in their court systems, when inevitably lawsuits are filed concerning the conflict of one party’s constitutional rights and another party’s bigotry justified by religion. (The language of these laws is usually restricted to private citizens, meaning that marriage licenses and public accommodations for LGBT people theoretically shouldn’t change — although, as the Nation pointed out in February, the language on the original EO draft was extraordinarily broad.) That setup is a recipe for an ugly patchwork of different state legalities surrounding LGBT people’s basic rights, and eventually a big lawsuit that may make it up to the Supreme Court — one that now has Neil Gorsuch on it.
When Mike Pence signed his Indiana RFRA into law, he had faced such intense opposition to it that he performed the signing in private — no public and no press allowed, only “supportive lawmakers, Franciscan monks and nuns, orthodox Jews, and some of the state’s most powerful lobbyists on conservative social issues.” He knew then, and knows now, that license to discriminate in the name of religion isn’t something America as a whole wants or needs — he’s gone from a closed-door signing ceremony to an executive order that legislators and the public don’t have a chance to weigh in on, without even allowing the language to be publicly available. When he passed the Indiana RFRA in 2015, “so many calls flooded the governor’s office that the phone system was temporarily overwhelmed.” It’s up to us to make sure there’s at least as much outrage — and support of protective measures like the Equality Act — today.