President Donald Trump, First Lady Melania Trump, Vice President Michael Pence and his wife Karen Pence attends the National Prayer Service at the Washington National Cathedral in Washington, DC, USA, 21 January 2017. (Photo: OLIVIER DOULIERY / POOL, EPA)
WASHINGTON – With President Trump expected to sign a controversial executive order on religious freedom as early as Thursday, civil liberties groups are already gearing up for a fight.
Lawyers for the American Civil Liberties Union and the Human Rights Campaign said they plan to immediately file legal challenges against the order, if it is as broad as a draft that leaked earlier this year. They're concerned Trump's actions will enable discrimination against gays and religious minorities, and allow many employers to deny birth control services in the health care plans they offer to workers.
“It would create an unprecedented license to discriminate with taxpayers’ funds, undermine women’s health care and elevate one narrow set of religious beliefs over all others,” said Sarah Warbelow, legal director for the Human Rights Campaign.
Trump is likely to at least discuss the executive order on Thursday, which is the National Day of Prayer. And the scene at the White House appears all set for a signing. “There could be no better day to sign an executive order on religious freedom than the National Day of Prayer,” said Mat Staver who heads the Liberty Counsel, a legal group that has fought against same-sex marriage.
And Vice President Pence, who set off a national firestorm when he signed a religious freedom law as governor of Indiana in 2015, was scheduled to host members of the White House’s “Evangelical Advisory Board” at a White House dinner Wednesday.
But two administration officials say that they're not certain whether any documents will be ready to sign. Trump officials and lawyers are still fine-tuning the details, including provisions to determine whether people can be compelled to provide services to gays or gay couples if it goes against their religious beliefs, the officials said under condition of anonymity, because plans are still in flux.
Trump also wants to curtail the so-called "Johnson Amendment," which says religious organizations cannot participate in political activity, the officials said. The administration is considering an order that would include a provision instructing the Treasury Department to ease off its enforcement of the Johnson Amendment. An American Civil Liberties Union lawyer Brigitte Amiri said the group was "exploring all options," including suing the government, in response to that action.
Even as the Trump administration finalizes its plans on this front, the opposition has begun: Gay and civil rights advocates protested in front of the White House Wednesday, saying the pending executive order is the latest Trump administration action that attacks the rights of immigrants, Muslims, women and members of the LGBTQ community.
Religious conservatives have long pushed Trump to renew what they say is an “appreciation for religious freedom” they say the Obama administration undermined despite a law created in 1993 to protect religious freedom.
“It’s simply bringing the federal government back in line with [the Religious Freedom Restoration Act],” Tony Perkins, president of the Family Research Council, said last month about the need for an executive order.
Ryan Anderson, senior research fellow at Heritage, said the executive order could “clarify in a strengthening way” how to apply the Religious Freedom Restoration Act, which which says a government can "substantially burden" a person's exercise of religion only if it advances an important government interest – and does so in the least restrictive way possible.
“If the prior administration interpreted existing federal law in a way that constricted religious liberty, this would be returning it to a robust understanding of religious liberty,” Anderson said.
During his campaign, Trump pledged that the “first priority of my administration will be to preserve and protect our religious liberty.”
Religious conservatives, though, waited anxiously for action – and some were disappointed when the White House announced in January that Trump would not undo President Obama’s executive order protecting employees from anti-LGBTQ workplace discrimination while working for federal contractors.
The administration emphasized at the time that Trump is proud to be the first Republican nominee to mention the LGBTQ community in his nomination acceptance speech and “is determined to protect the rights of all Americans, including the LGBTQ community.”
Perkins said the expected religious freedom executive order has been delayed in part because “there are some counterviews” within the administration about whether it’s necessary.
But he was optimistic it will come, and that Pence would provide “solid counsel that will be in line with what a lot of evangelicals feel and think.”
The state religious freedom law Pence backed as Indiana’s governor sparked a backlash over whether it would allow florists, bakers and others to deny services to gays and lesbians.
Those are not the services that would be affected by the executive order – at least as initially drafted, civil liberties lawyers said. Instead, the directive would primarily affect organizations which receive a significant amount of federal funding to provide services such as homeless shelters, hospice care, and child welfare services, the Human Rights Campaign's Warbelow said.
She said the draft version of the order would allow those organizations to discriminate against the LGBTQ community. A hospital, for example, could refuse to allow a same-sex partner to visit a dying spouse. A child welfare organization could refuse to place a child in care of a same-sex couple.
Federal workers could also discriminate, she said, such as refusing to process spousal benefits for the spouse of a same-sex couple.
“There is an intention here to allow federal employees to utilize their religious views on the subject matters in the course of their jobs,” Warbelow said.
The American Civil Liberties Union said the draft executive order would hurt women by allowing “almost any employer” to exclude contraceptive coverage – and other preventive care benefits required by the Affordable Care Act – from their insurance plans.
“This is discrimination against women plain and simple,” said the ACLU's Amiri.
The ACLU is looking at “multiple opportunities” for challenging the executive order in court, she said, “because this is so clearly a violation of the Constitution.”
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