On Tuesday, Politico reported that President Donald Trump will sign a long-rumored executive order legalizing discrimination against LGBTQ people under the guise of “religious freedom.” The signing is expected to occur on Thursday as part of the White House’s celebration of the National Day of Prayer. According to one Politico source, the new order is quite similar to the draft that leaked in February. If that’s true, it will constitute the most extreme anti-LGBTQ order ever issued by an executive—one that may well run afoul of the Constitution.
Presuming Thursday’s order is substantially similar to February’s leak, it will serve one primary purpose: Allowing federal employees and contractors to discriminate against LGBTQ people with impunity. The order echoes the First Amendment Defense Act and Mississippi’s HB 1523 in selecting a handful of religious beliefs to privilege above all others. These beliefs align neatly with the political views of conservative evangelical Christians. They are:
[T]he 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.
Although the order’s main target is obviously LGBTQ people, it sweeps in several other groups, including anyone who has sex outside of marriage and women who’ve had an abortion. The order declares that no federal worker or contractor who holds these preferred beliefs may be punished for acting upon them. Thus, a homophobic government employee could refuse to process a same-sex couple’s tax returns or Social Security benefits; federally funded religious charities could refuse to serve transgender people or women who’ve had abortions; and government contractors could fire all LGBTQ employees, as well as any workers who’ve had sex outside of marriage. Meanwhile, a homeless shelter or drug treatment program that receives federal funding could reject LGBTQ people at the door, citing religious beliefs.
Trump, then, seems poised to reverse President Barack Obama’s executive order barring government contractors from discriminating on the basis of sexual orientation and gender identity—a rule he has already undermined. His new order would also subvert longstanding prohibitions against sex discrimination in the federal government. But it goes farther than that: The leaked draft explicitly permits “federally-funded child-welfare services,” including foster care and adoption agencies, to turn away same-sex couples. Under the order, taxpayer-funded adoption agencies could refuse to place children with queer or trans parents. These agencies could even decline to refer these parents to an agency that will serve them. The order essentially picks winners and losers—and nobody loses more than LGBTQ families.
Is any of this constitutional? Probably not, and civil rights groups are already preparing to sue. Mississippi’s HB 1523 attempted a similar trick, legalizing anti-LGBTQ discrimination in all walks of life. (Unlike the executive order, HB 1523 allowed discrimination in public accommodations like bakeries and funeral homes; Congress could follow up this order with FADA, a similar piece of legislation that would apply nationally.) But U.S. District Judge Carlton Reeves blocked the law, holding that it infringes upon the First Amendment’s Establishment Clause and dishonors America’s “tradition of religious freedom.” (An appeals court is currently reviewing that ruling.)
As Joshua Matz explains in Take Care—echoing Reeves’ decision—that was the right call: HB 1523 violates cardinal rules of the Establishment Clause by endorsing certain religious beliefs, providing special rights to those who hold such beliefs, and burdening individuals who don’t share those beliefs. By promoting religion in a manner that limits others’ rights, HB 1523 likely runs afoul of the First Amendment.
If Trump’s executive order looks anything like the February draft, it will pose the same constitutional problems as HB 1523. But it isn’t clear that the courts will agree with Reeves that these laws pose an unconstitutional threat to genuine religious liberty. In the past, the Supreme Court has struck down, on Establishment Clause grounds, laws that prefer one religion over another and burden third parties by granting extra rights to believers. Today, however, the court’s conservatives are no longer bothered by religious accommodations that harm non-believers or religious endorsement by the government.
If Justice Anthony Kennedy steps down soon—as “friends and associates” say he may, according to CNN—the court will contain five conservatives who oppose LGBTQ rights and favor religious supremacy. And even if Kennedy remains on the bench, his wobbly Establishment Clause jurisprudence provides no guarantee that he will vote against Trump’s order. Kennedy might defend gay rights, but he also sometimes backs state promotion of religion.
Two final points about Trump’s impending order. First, as Michelangelo Signorile notes in the Huffington Post, the timing is no coincidence: Trump’s approval ratings continue to tank, and he failed to score any major legislative achievements in his first 100 days. To retain his grasp on power, Trump must continue to galvanize his base, which includes a huge number of evangelical Christians. These voters demand a victory, and Trump wants to give them one; this executive order is probably the lowest hanging fruit. By signing it, he can rally his core supporters while placating the conservative Christians in Congress and his own inner circle. (Vice President Mike Pence is allegedly the driving force behind the order, which builds upon the “religious freedom” bill that he notoriously signed as Indiana governor.)
Of course, not everyone in Trump’s circle is an anti-gay culture warrior—which brings me to my second point: If Trump follows through with this order, he will have undone Jared Kushner and Ivanka Trump’s lone liberal achievement. Jared and Ivanka were lauded as moderating influence in February when rumors (perhaps emanating from the pair themselves) emerged that they had stopped the president from signing the anti-LGBTQ order.
Ever since, centrists and progressives have hoped that the duo would prevent Trump from launching an all-out assault on LGBTQ rights and abortion access. That optimism seems to have been a pipe dream. Trump badly needs a win right now. And if he signs this order, it indicates that he will not hesitate to throw LGBTQ people under the bus in his quest for admiration from the most bigoted pockets of his base.