So for those still holding out hope that Jared and Ivanka's brutal pragmatism can be some sort of moderating influence on Donald Trump when it comes to Mike Pence and the GOP's theocracy wing, you should probably consider those hopes shredded starting tomorrow.
President Donald Trump has invited conservative leaders to the White House on Thursday for what they expect will be the ceremonial signing of a long-awaited—and highly controversial—executive order on religious liberty, according to multiple people familiar with the situation.
Two senior administration officials confirmed the plan, though one cautioned that it hasn’t yet been finalized, and noted that lawyers are currently reviewing and fine-tuning the draft language. Thursday is the National Day of Prayer, and the White House was already planning to celebrate the occasion with faith leaders.
The signing would represent a major triumph for Vice President Mike Pence—whose push for religious-freedom legislation backfired mightily when he served as governor of Indiana—and his allies in the conservative movement.
The original draft order, which would have established broad exemptions for people and groups to claim religious objections under virtually any circumstance, was leaked to The Nation on Feb. 1—the handiwork, many conservatives believed, of Ivanka Trump and Jared Kushner, who have sought to project themselves as friendly to the LGBT community. Liberals blasted the draft order as government-licensed discrimination, and the White House distanced itself from the leaked document in a public statement.
Pence and a small team of conservative allies quickly began working behind the scenes to revise the language, and in recent weeks have ratcheted up the pressure on Trump to sign it. The new draft is being tightly held, but 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.
If that's true, this one's going to be certainly challenged in court, but between the Supreme Court's Hobby Lobby ruling two years ago and the nearly 25-year-old Religious Freedom Restoration Act (thanks Bill!) there may not be very much opponents can do to keep Trump from exempting nearly everyone from anti-discrimination laws or just about anything else for that matter if they are opposed to them on the grounds of religious belief. From The Nation:
The four-page draft order, a copy of which is currently circulating among federal staff and advocacy organizations, 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.”
The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act. The White House did not respond to requests for comment, but when asked Monday about whether a religious freedom executive order was in the works, White House spokesman Sean Spicer told reporters, “I’m not getting ahead of the executive orders that we may or may not issue. There is a lot of executive orders, a lot of things that the president has talked about and will continue to fulfill, but we have nothing on that front now.”
Language in the draft document specifically protects the tax-exempt status of any organization that “believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”
The breadth of the draft order, which legal experts described as “sweeping” and “staggering,” may exceed the authority of the executive branch if enacted. It also, by extending some of its protections to one particular set of religious beliefs, would risk violating the Establishment Clause of the First Amendment to the Constitution.
“This executive order would appear to require agencies to provide extensive exemptions from a staggering number of federal laws—without regard to whether such laws substantially burden religious exercise,” said Marty Lederman, a professor at Georgetown University Law Center and an expert on church-state separation and religious freedom.
Almost certainly this would head to the US Supreme Court, with Trump's freshly installed Justice Neil Gorsuch ready to rule in Trump's favor. Certainly this would be another instance where Kenndy could decide the fate of the country again in a 5-4 decision.
The battle to legalize discrimination begins in earnest tomorrow, it seems.
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