Section 1. Policy.
Trump's proposed executive order begins with a critical misunderstanding of the Constitution. In Section 1, he declares that the Constitution ensures that religious people and organizations "will not be coerced by the federal government into participating in activities that violate their consciences." This misreading of the First Amendment of the U.S. Constitution, which underlies the entire executive order, is deceitful and un-American.
Religious belief was never intended to be a "free pass," allowing a citizen who happens to be a believer to avoid adhering to the social contract that binds us all as "We the People." Trump's misinterpretation of the Constitution — endorsed by extreme religious organizations, his vice president and advisers — amounts to a reckless redefinition of the concept of "religious freedom." The cost will be the end of civil rights and the principle carved into the U.S. Supreme Court building: Equal Justice Under Law.
Under our First Amendment, freedom of religious belief ends where the rights of others begin. The Bill of Rights protects the rights of minorities from majority will over matters involving individual conscience and civil liberties. Trump's proposed executive order would grant a unique privilege, never before seen in the history of our secular nation: to believers to discriminate in the name of their religion or deity.
Section 2. Definitions.
Section 2 defines "person" in the same expansive and outrageous manner that resulted in Hobby Lobby, a for-profit corporation, being granted free exercise rights — the first time such rights have been extended to a corporate entity in the history of our nation. The result was the loss of contraceptive health care coverage for thousands of Hobby Lobby's employees, in order to protect the "religious freedom" of a company.
This definition is reckless and, in the context of this executive order, leaves open the possibility that millions of real humans will not be able to receive necessary services from their government.
"Religious exercise," which is absolutely protected in Trump's executive order, includes not only tenets central to a system of religious belief, but also any other act (or refusal to act) that is merely motivated by religion, even if it is a fringe belief or interpretation held by an extremist minority.
But there is only one absolute right protected under our Constitution: freedom of thought. That freedom is embodied in the rights protected under the First Amendment. But those rights, including the exercise of religion, are not unlimited. Thomas Jefferson noted: "It does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg." But as soon as one's exercise of religion begins picking pockets or breaking legs, or discriminating, that right ends. Religion is not and never should be an excuse to violate the rights of other citizens.
Section 3. Religious Freedom Principles and Policymaking Criteria.
The Trump proposal is unprecedented in ordering that government employees and private organizations fulfilling a government role are allowed to bring their personal biases to work, so long as those biases are fueled in part by religious belief. This section would legalize the type of discrimination exercised by Kentucky clerk Kim Davis against same-sex couples. Under this order, citizens could no longer count on receiving a consistent level of service from government. Services would be entirely dependent on the personal beliefs of the personal beliefs or biases of the governmental employee sitting behind the government desk. This sweeping change would affect every type of government benefit — from what our children learn in school, to what medical procedures are covered by our health insurance, who can adopt children, and who has access to benefits meant for veterans, the elderly, the homeless, or those on disability.
However, any individual acting in an official government capacity is the government and is bound by the Establishment Clause. As FFRF has written to many government officials, "In your personal capacity you can freely exercise your religion as you see fit. In your official capacity as an agent of the government, you are bound by the Establishment Clause and cannot abuse your office or authority to promote your personal religion."
Section 4. Specific agency Responsibilities to Avoid Potential Violation of Religious Freedom.
(a) This allows any entity that objects to the Affordable Care Act's contraceptive mandate to exempt itself from it. Right now, the federal courts, hampered by an eight-person Supreme Court, have been unable to answer whether requiring an Catholic order to fill out a two-page, five-blank form (requiring 1. entity name, 2. name of individual filling out the form, 3. mailing address, 4. signature, and 5. date) violates the entity's religious freedom. Quite obviously, it does not! The government routinely mandates that its citizens and organizations comply with far more burdensome requirements. But Little Sisters of the Poor and other groups have argued that this form is a "burden" on their religion. This proposed executive order would signal the end of universally applied regulations.
(b) This demand would require the federal government to ensure that individuals can purchase health insurance that does not cover "abortion," which, let us not forget, includes most forms of birth control in the minds of many religious anti-choice advocates, however untrue that belief is. Nonsensically, this order would also require the federal government, somehow, to ensure that birth-control-free health care options exist in states that opted out of the federally facilitated exchange.
(c) This section grants organizations receiving federal money to provide child welfare services a license to discriminate in the name of their religion against any families or individual children who are LGBTQ or practice a minority religion. If ordered, federal agencies could no longer ensure that all families and individual children have equal access to adoption, foster care, or any other child welfare services.
(d) This section would allow any religious person or organization with a government contract to discriminate in hiring on religious grounds. It effectively circumvents nondiscrimination protections in hiring decisions for employees providing government services.
(e)(1) This seeks to halt all enforcement of the Johnson Amendment, which bars churches or other 501(c)(3) tax-exempt groups from endorsing or opposing political candidates. Charitable donations that are essentially subsidized by taxpayers should not used for political ends. Any church is free to make a choice whether to remain tax-exempt or to decide to forfeit this privilege in order to engage in politics. This prevents the IRS from enforcing that rule. Unlike other 501(c)(3)s, churches do not have to file tax returns with the IRS. Other tax-exempt (c)(3)s must track every dime that comes in and goes out. You can usually find their Form 990 tax returns online. But churches are financial black holes.
Pair that with Trump's proposed executive order, and you have a quick recipe for churches to absorb millions, possibly billions, for political campaigns, which they can spend on anything they want. This is not about free speech, it's about tax-subsidized political power. Pastors can already endorse, just not from the pulpit using the aegis of their church or tax-free money.
At the National Prayer Breakfast on Feb. 2, Trump vowed: "I will get rid of and totally destroy the Johnson Amendment."
(e)(2) Isolates specific religious beliefs for special protections by the government. It grants unique status to the beliefs that: same-sex couples cannot be married, sex outside of marriage is sinful, transgender individuals should be defined by their assigned sex at or before birth, and human life begins at conception. Naturally, these are all beliefs regularly voiced by extreme evangelical Christians. This section not only elevates religion over nonreligion, but specific religion — evangelical Christianity and Catholicism mainly — over other religions.
(b) [sic] This section attempts to prohibit the government from withholding accreditation to organizations that hold any of the specially protected beliefs in section 4(e)(2). Evangelical colleges often require their students to adhere to a strict behavioral code that bans sinning" and in effect, discriminates against LGBTQ students. Lately, those colleges have been struggling to retain accreditation from agencies, often nongovernmental, that do not wish to accredit institutions that discriminate. However, the federal government does "recognize" some accrediting bodies. This part of the order contains some mistakes, but we expect that it would be used to pressure accrediting agencies that wish to keep their federal recognition to let religious schools discriminate against LGBTQ citizens and to refuse to consider that discrimination in the accreditation process.
But this rule might have a more major ulterior motive. In the early 1980s, the IRS revoked Bob Jones University's tax exemption because the school discriminated on the basis of race. The university sued the government, arguing that its religious beliefs required the discrimination. The Supreme Court held that the "governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs." Trump's executive order looks like it could undo this rationale, certainly as it applies to LGBTQ Americans, but perhaps even more broadly.
(g) The Combined Federal Campaign is a program that allows federal employees to donate to charities directly from their paycheck. Every year, nonprofits and charities have to apply to be put on the list. In April of 2014, the Office of Personnel Management promulgated new rules for organizations seeking to be eligible for the CFC, including that they not discriminate against LGBTQ citizens. Trump's EO is seeking to prohibit the enforcement of anti-discrimination rules such as this.
(k) This section would prohibit federal agencies from punishing employees who refuse to do their job for religious reasons (such as Kentucky clerk Kim Davis, who refused to issue marriage licenses to same-sex couples, despite that being one of her job duties). This protection would extend to employees who hold any of the specially protected beliefs in section 4(e)(2), which means agencies cannot take action against employees who discriminate against transgender people or who refuse to provide contraception to women.
(l) This section would create a special working group to advance the idea of "religious freedom" as understood in this executive order and as advanced by extremists on the Religious Right, who wish to impose their personal religious beliefs on others. The special working group would operate in the Department of Justice, under Jeff Sessions, who has called the constitutional principle of a wall of separation between religion and government a "recent thing that is unhistorical and unconstitutional."