Draft executive order would expand religious protections, potentially allowing denial of services to gays
President Donald Trump greets attendees during the National Prayer Breakfast on Thursday.
PHOTO: WIN MCNAMEE/BLOOMBERG NEWS
Ian Lovett ,
Jacob Gershman and
Feb. 2, 2017 4:31 p.m. ET
President Donald Trump vowed Thursday to repeal a ban on churches engaging in political campaigning, while his administration also was exploring other steps to expand religious rights, including increased protections for individuals, organizations and employers acting on their faith.
Mr. Trump said at the National Prayer Breakfast on Thursday morning that his administration “will do everything in its power to defend and protect religious liberty.” He said he would seek the repeal of the Johnson Amendment passed by Congress in 1954, which prohibits many nonprofit organizations, including churches and charities, from endorsing political candidates.
Meanwhile, a draft executive order circulating in the administration would dramatically expand legal exemptions on the grounds of religious beliefs. That would potentially allow discrimination against gay, transgender and other people, as well as the denial of contraception coverage for some workers. It also would likely trigger legal and political battles.
The draft order, a copy of which was reviewed by The Wall Street Journal, hasn’t been signed, and it may never reach Mr. Trump’s desk.
Press Secretary Sean Spicer, asked Thursday about the draft order, said, “There’s right now no executive orders that are official or able to read out. We maintain that there’s nothing new on that front,” adding that there “are a lot of ideas being floated out” but “until the President makes up his mind and gives feedback and decides that that’s final, there’s nothing to announce.”
“We have freedom of religion in this country, and I think people should be able to practice their religion, express their religion, express areas of their faith without reprisal,” Mr. Spicer said. “And I think that pendulum sometimes swings the other way in the name of political correctness.”
Still, advocates on both the right and the left saw the draft order as a statement of intent from a president who courted conservative Christian voters by promising to expand the place of religion in public life.
It presented a sharp reversal from the rapid expansion under President Barack Obama and by the Supreme Court of legal protections for gay and transgender people, which many religious groups said put them in the difficult of position either violating their faith or the law.
“It’s an attempt to say to religious-minded persons that Trump has their back,” said Robin Fretwell Wilson, a professor at the University of Illinois College of Law, of the draft order.
It wasn’t immediately clear on Thursday exactly what the effects of the order would be if it were enacted as written. The order would likely unleash legal challenges, and could prompt backlash from corporations that have objected to moves by state legislators to enact religious protection laws they view as discriminatory.
But all sides agreed that, as written, its implications would be far-reaching, affecting the health-care industry, employment regulation and policy about who could receive government grants and contracts.
“If the White House did even a fraction of the things that are in this draft executive order, that would be an unprecedented rollback of LGBT equality and rights,” said David Stacy, director of government affairs for the Human Rights Campaign. “This would provide a blanket exemption for religious organizations not to have to follow any statute that they say violates their religious beliefs.”
Legal experts also questioned whether the order itself would be legal, or whether it could be viewed by a court as overreach by the executive branch.
The draft order immediately plunges Mr. Trump into a debate over religious freedom, gay rights and reproductive rights that has churned through states and courts for years—most recently with the disputes over transgender people’s use of bathrooms.
Some religious groups—including business owners and educators—have argued that being forced to hire openly gay or transgender employees, or provide contraception coverage, violates their beliefs.
As gay marriage became legal, first across individual states and then nationwide, some private businesses balked when asked to provide services to gay couples.
In Utah, baker Jack Phillips argued in courts for years that his religious freedom entitled him to refuse to sell a cake to two gay men. He lost in two courts, and last year Colorado’s highest court declined to hear the case. Similar issues played out at bakeries, florists and other wedding-services businesses in Texas, Oregon, Washington and other states.
New Mexico’s high court in 2013 ruled that the owners of an Albuquerque wedding photography business violated a state antidiscrimination law when it turned away a lesbian couple who wanted to hire the company to take pictures of their commitment ceremony. The photographer cited both religious freedom and free-speech concerns.
A Kentucky county clerk who said she opposed gay marriage for religious reasons garnered national attention in 2015 when she refused to issue marriage licenses to gay couples after the U.S. Supreme Court cleared the way for same-sex marriage. She was jailed for five days for refusing a federal judge’s order to issue the licenses.
Some states passed blanket “religious freedom” laws that faced fierce opposition from critics, including major businesses, who said they were a license to discriminate against gays and lesbians. Arkansas and Indiana tweaked proposed laws in 2015 after receiving such pushback.
Corporations and professional athletic leagues have tended to side with gay-rights advocates, with many pulling out of states, such as North Carolina, that passed laws specifically restricting gay or transgender rights.
The draft order offers reassurance to a variety of religious faiths, including Sikhs and Mormons, that have wrangled with the government over the place of faith in schools, hospitals, charities and private businesses.
Members of the Sikh faith have sought religious exemptions from the U.S. military in order to wear turbans and beards. The U.S. Army recently relaxed its rules to allow for articles of faith, making it easier for Sikhs and others to adhere to religious belief.
The Church of Jesus Christ of Latter-day Saints, or the Mormons, have struggled to strike a compromise with gay-rights groups over discrimination in housing and employment.
William E. Lori, the Catholic archbishop of Baltimore and chairman of the U.S. Conference of Catholic Bishop’s committee on religious liberty, said in an email Thursday that it is “critically important to the Catholic community that protections for religious freedom are provided by the federal government.”
The draft includes a provision aimed squarely at ending a five-year fight over requirements that most employers cover contraception in workers’ health plans, a rule that stems from the 2010 Affordable Care Act and that was opposed in the courts almost immediately by religiously affiliated charities and companies arguing they would be forced to violate their conscience by facilitating access to some or all forms of birth control, which they considered immoral.
The language in the draft order is almost identical to the outcome sought by plaintiffs who twice pursued their cases to the Supreme Court: an outright exemption to the requirement to cover preventive care such as contraception without out-of-pocket costs for plan enrollees for any person or organization that had a religious or moral objection.
In the first Supreme Court case, private companies headed by religious families such as the arts-and-crafts chain Hobby Lobby argued that their owners had a right to assert such beliefs and have them be considered by the federal government as akin to individuals.
In the second case, brought by religiously affiliated nonprofits such as Catholic Charities and the Little Sisters of the Poor, an order of nuns who run a chain of nursing homes, the court punted on deciding whether a proposed compromise arrangement from the Obama administration was sufficient to address their concerns and sent the issue back to the lower courts.
“I look at this order and think, ‘Wow, if this issues, this could be the beginning of the end of this long national scandal of the government fighting the Little Sisters of the Poor,’” said Mark Rienzi, senior counsel at Becket, the law firm that represented them.
As he tries to balance religious liberty against LGBT rights, Mr. Trump cuts a more complex figure than many other Republicans, including some prominent members of his administration, who openly oppose gay marriage.
Just Tuesday, the White House said Mr. Trump would leave in place a 2014 Obama administration executive order, which established new workplace protections for gay, lesbian, bisexual and transgender people—prompting complaints from some Catholic and Protestant leaders.
The draft executive order would add a requirement that federal contractors, as well as grantees, can’t be retaliated against for making their employees follow certain religious conditions. Gay-rights advocates said the provision would effectively gut the 2014 executive order, offering a loophole to anyone who claimed a religious objection.
—Sara Randazzo contributed to this article.