Can Trump strengthen religious protections while supporting LGBT rights?
A leaked draft of an executive order offers the first glimpse of how the Trump administration plans to balance promises to support LGBT protections with urging from his conservative base to preserve religious freedoms.
—A leaked draft of an executive order has some wondering if President Trump intends to walk back a promise to protect LGBT rights in favor of increased religious freedom.
During his campaign for president, Mr. Trump was regarded as the most pro-LGBT candidate on the GOP debate stage. That likely appealed to young conservatives, who are markedly more liberal in their views of sexual minorities, but was more controversial with evangelical voters. With the presidency secured – thanks to the evangelical vote – observers on both sides of the issue are eager to see where his policies on the issue will fall.
Some speculated that he might seek some sort of middle ground that both affords protections to the LGBT community and preserves religious freedoms, but a draft of the order, obtained and published Wednesday by The Nation, suggests the Trump administration will lean toward his base.
The drafted order, “Establishing a Government-Wide Initiative to Respect Religious Freedom,” calls for expanding religious safeguards beyond clergy and houses of worship to civilians in various aspects of daily life, including education, healthcare, the workplace, job seeking and hiring, contracting with government, and conduct in public spaces.
The order would also allow religious organizations to engage in political speech without violating their tax-exempt status – effectively overturning the Johnson Amendment – and allow healthcare providers to deny women reproductive health services.
“Americans and their religious organizations will not be coerced by the Federal Government into participating in activities that violate their conscience,” the order reads.
While religious groups and some business owners have celebrated such measures, lesbian, bisexual, gay, and transgender activists have decried the broad directive, saying it could allow institutions and individuals to engage in discriminatory practices while citing their religious beliefs as a legal protection. Others caution that other vulnerable communities could also fall victim to discrimination.
LGBT rights and religious freedoms have clashed since activists launched the gay rights movement more than 40 years ago. As those under the LGBT umbrella have gained more legal protections and social support, culminating in the 2015 Supreme Court decision that legalized same-sex marriage, religious groups have found themselves further entangled with anti-discrimination laws as they attempt to push back on a shifting culture.
For some, it’s a zero sum game, but others see a compromise path that provides legal shields for same-sex couples and transgender individuals in the public sphere while permitting religious individuals and organizations to act as they choose in the private sector.
In its current form, Trump’s broad order could tip too heavily in favor of religious freedom to straddle that line, says Marci Hamilton, a distinguished scholar at the University of Pennsylvania.
“They mean this to be extremely broad,” she tells The Christian Science Monitor in a phone interview.
The draft defines a religious exercise as “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.”
Such vague and expansive wording has the potential to open debates on an organization or individual’s obligation to serve anyone whose ethnicity, religion, gender, or sexual orientation could be seen as offensive to a personal belief or bias, says Professor Hamilton, who wrote the 2014 book "God vs. the Gavel: The Perils of Extreme Religious Liberty."
“This kind of generic religious liberty language opens the door to unimaginable applications,” she says, noting that religious and ethnic minorities outside of the LGBT community could also face discrimination under the order, while others could use it to argue for increased protections for banned practices such as polygamy.
On Tuesday, the White House issued a statement saying that Trump did not plan to overturn an executive order signed into place by former President Obama that created workplace protections to shield the LGBT community from discrimination in federally contracted jobs.
"President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election," the White House announced in a statement. "The president is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression."
Some declared Trump the most LGBT-friendly GOP presidential candidate on the campaign trail, leading many to wonder if he would take a more centered approach to gay and transgender rights than past Republicans. Peter Thiel, the openly gay co-founder of PayPal, has been a close supporter of the president and spoke in favor of him at the Republican National Convention.
But with evangelicals playing such a prominent role in his base, Trump has made it clear that he plans to stand up for conservative Christians. And drafting an order to expand their control over schools, businesses, and organizations with religious ties could prove a popular move among his supporters.
LGBT advocates say that leaking this order after Tuesday's statement reveals just how thin his promises to their community were. Keeping Mr. Obama’s order in place would prevent the government from discriminating against the LGBT community, but this new executive order would allow government employees or anyone else to act in openly discriminatory ways, they say.
Activists argue that the order would allow employers to terminate workers based on their sexual orientation or gender identity and prevent same-sex couples from adopting children through religious groups or accessing some welfare services. They further worry that the order would give businesses, medical providers, and schools the right to legally discriminate against LGBT individuals.
“If anything in this document were to become federal law, it would be a national license to discriminate, and it would endanger LGBTQ people and their families,” wrote Sarah Kate Ellis, president and chief executive of GLAAD, an LGBT advocacy group, in a statement. “Freedom of Religion does not mean the freedom to discriminate. If the Trump Administration moves forward with any of these unconstitutional and un-American policies, the chorus of public outcry will get even louder while the president’s approval ratings continue to crumble.”
But others think that LGBT individuals and religious organizations can each find breathing room without encroaching on one another.
Upon reading the order, Kelly Shackelford, the president and chief executive of First Liberty, a legal group that represents plaintiffs in First Amendment cases, said the draft implied that “[Trump] believes that you can coexist. You can have those rights and you have religious freedom. The approach is what America’s about.”
If signed, the order could represent an effort by Trump to make good on campaign promises. He touted his support for the First Amendment Defense Act, which bars the federal government from taking "discriminatory action" against those who act in opposition to LGBT rights. He also promised to "destroy" the Johnson Amendment, a measure that bars certain nonprofits, including churches, from endorsing or opposing political candidates.
Speaking at the National Prayer Breakfast Thursday, Trump reiterated one of those promises.
“I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution,” he said.
If approved by Congress, that would allow nonprofit groups receiving tax exempt donations to adopt a political stance. He did not mention the leaked order, the viability of which is contested by legal experts.
“I think it is legally viable,” Douglas Laycock, a law professor at the University of Virginia, tells the Monitor in an email, noting that the order wouldn’t bar same-sex couples from adopting or receiving other services, if they did so through secular organizations or religious ones that allowed it.
“Some of the sections provide absolute protection without regard to countervailing interests, and those may be subject to successful legal challenge on occasion if they leave sexual minorities without services to which they are entitled,” he adds, “but for the most part, the absolute protection is provided in contexts where that risk seems relatively small.”
Hamilton argues, however, that the order in its current form would force the LGBT community into a state of second-class citizenship.
“[The order] is unconstitutional. But it’s a wish list,” she says, noting that it could serve as a more extreme version of the controversial Religious Freedom Restoration Act.
If the Trump administration amends the language to become more specific and curtails its scope, she says, it’s possible the order could come closer to the center. Until then, it would likely create clashes between the LGBT community and conservative Christians, and also among different religious groups with conflicting positions.
“The worldview is that every religious believer lives in this bubble and that you can’t be expected to deal with people who are distinctive from your own set of beliefs,” Hamilton says. “I think there are a number of communities that are potentially harmed by this.”
[Editor's note: A previous version of this article included an outdated title for Professor Marci A. Hamilton. She is the Fox Family Pavilion Distinguished Scholar in Residence at the Program for Research on Religion at the University of Pennsylvania in Philadelphia.]