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Trump is About to Release His ‘Religious Freedom’ Order, and It’s Looking Awful


Well, tomorrow is the National Day of Prayer, and since America is now ostensibly “Great Again,” we can expect a Trumpian bastardization of the concept of religion. Word on the street is that the administration is planning to work its usual magic as it gears up to release a new executive order on religious liberty.  Before we dive into the world of administration 45, let’s recap the tangled web of “religious liberty” laws.

The First Amendment guarantees religious freedom as a core American value:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

For a good long time, those words were interpreted to mean that the government can’t regulate what people are allowed to believe. Of course, the government can regulate how people behave, as long as it’s even-handed in that regulation. So, for example, bigamy can be prohibited, as long as the law applies to everybody and isn’t specifically targeted at Mormons with sister wives. This system makes good sense, because otherwise, any criminal could defend his or her behavior by simply saying the commission of the crime was essential to some religious practice.

Fast-forward to the 1960s. Post-Civil Rights Movement, the legal interpretation of “religious freedom” widened. SCOTUS issued some rulings that permitted people to break laws when those laws directly interfered with religious practices. Seventh-Day Adventists, for example, were exempted from working on their Sabbath, and Amish families didn’t have to send their kids to high school. Of course, anyone familiar with slippery slopes was concerned that this whole “let’s be sure to respect people’s religious practices” thing might get out of hand (spoiler alert, we’ve now gotten totally out of hand).

By 1990, though, courts had tightened up considerably on the meaning of “religious freedom.” Justice Scalia, for example (who, by the way, was a devoutly religious man) sided with a ruling that Native Americans had to follow the same laws the rest of us do, even when that meant they couldn’t use peyote during their religious ceremonies. The fear that other religious practices would be similarly at risk instigated both federal and state religious freedom laws, known as “RFRA” laws.

Federal RFRA has had complex legal challenges, most of which involve the central question, “is this an actual religious practice that the government should be respecting, or is this some sort of nonsense argument to help someone break the law?” The results have been mixed. The Tax Court called bullshit on the Quaker lady claiming that paying federal income taxes violated her religion. But SCOTUS said that Florida is going to have to allow people to practice Santeria, animal sacrifices and all.

Somehow, though, the entire idea of “religious freedom” has been turned inside-out during the last decade. Now, the phrase “free exercise of religion” isn’t about Native Americans in ancient ceremonies, but about faux-Christian bigots prying into people’s bedrooms in the name of Jesus. By the summer of 2014, we hit an all-time low with the Hobby Lobby case, the logic of which made the Quaker tax-evader look totally reasonable. The winners in Hobby Lobby prevailed in their quest to allow a private business to exempt itself from the Affordable Care Act’s mandate that businesses provide contraception to their employees. Apparently, allowing other people to exercise their freedoms was enough to interfere with the “religious freedom” of Hobby Lobby — which, by the way, is a business, and not a person. Don’t even ask how a business could have religious beliefs.

The Hobby Lobby case rolled out the red carpet for those looking to discriminate and call it “religion.” Indiana, North Carolina, Mississippi and others have passed their own state RFRA laws, many of which specifically allowed (read, “encouraged”) discrimination against LGBT people. Our lovely Vice President lead the charge over in Indiana, a move which pleased some conservatives, but caused serious damage by way of boycotts for the state as a whole.

It is against this landscape that Donald Trump took office, building a presidency on the backs of the social conservatives who seemed not to notice Trump’s relatively recent enlisting into their ranks. Back in February of this year, a leaked copy of a draft executive order titled “Establishing a Government-Wide Initiative to Respect Religious Freedom,” was published by The Nation. And it was bad. Really bad.  The draft order defined “religious organizations” so broadly that it covered literally “any organization, including closely held for-profit corporations.” And it protected “religious freedom” for everything from providing social services, education, or healthcare, to employment to receiving government grants, and even the amorphous “otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.”

The draft order fully allowed people and organizations to exempt themselves from anti-discrimination laws if they claimed religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity. Oh, and of course, it interfered with women’s access to contraception and abortion.

Then (and here are words I never thought I’d write), thank God for Ivanka. Rumor has it that she and Jared Kushner breezed into the Oval Office and suggested it might be a better idea for President Trump to lay off the whole legalize-homophobia thing. And as it turned out, Trump seems to have listened. But our reprieve from institutionalized bigotry and misogyny is likely to be short-lived. Any day now, 45 is expected to hand down a new version of the executive order on religious freedom. Vice President Mike Pence and his team have been hard at work drafting an order that will please both Ivanka and social conservatives. In other words, one that’ll tell the world that it’s open season on LGBT and women’s rights while sounding as innocuous as a recipe for peach cobbler. Bless their hearts.

If Trump’s new executive order is actually as bad as it is in my imagination, it’s going to be far more detrimental than any order he’s signed so far. Unlike the immigration orders, which directed federal agencies to discriminate, a religious freedom order could allow everyone to do so. By creating blanket protection for such discrimination, the order could set back the clock on LGBT progress by decades. Legalizing discrimination in this nature not only hurts women, LGBT people, and those who love them—but also hurts religion itself. When the idea of religious freedom is conflated with discrimination and bigotry, true believers are harmed almost as badly as the subjects of the discrimination themselves. Doing business with, providing healthcare for, and generally coexisting with women and LGBT people is not part of practicing any legitimate religion. Mike Pence may worship at the altar of intolerance, but the rest of us should really know better. Let’s hope Ivanka drops by her dad’s desk before this one gets released.

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos