Reports of an impending executive order raised fear of pogroms among LGBT peoples and it’s easy to see why. The leaked draft, offered to the public by the Southern Poverty Law Center contained sweeping language that would have established a full green light to para-church organizations seeking to flex their political muscles against demographics churches typically ostracize.1
But the Trump Administration appeared to back off in the executive order it actually did issue: emphasis upon the word “appeared”. The details suggest something more subtle that by no means indicates real change in any way except by whose authority guidance on religious liberty gets issued.
It must be stressed that the executive order distributed by Southern Poverty Law Center was not the one signed by the President. Do we absolutely know that the leaked draft represented the intentions of the Trump Administration? Apart from the consistency of the draft with stated intentions throughout the Trump campaign we can’t say that we do. But changes between the draft and the signed executive order can be compared.
The change prompted Equality California to issue this statement on Facebook on May 4:
“Organizers are calling off tonight’s rally — today’s executive order was not the broadside on LGBT rights we feared. However, it is a frontal attack on women’s reproductive rights and opens the door to potential anti-LGBT discrimination in the future.
“Please participate in the many smaller, targeted events that are being planned today by Planned Parenthood Action, advocates of the separation of church and state and others. And although today’s order was not the expected attack, that broader anti-LGBT order could still come at any time. Please keep monitoring our page and those of other LGBT organizations for future actions. We are not letting down our guard. Stand with us.”2
The breadth of the leaked draft could be seen in the definitions:
“Religious exercise” includes all aspects of religious observance and practice, as well as belief, and includes 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.
“Religious organization” shall be construed broadly to encompass any organization including closely held for-profit corporations, operated for a religious purpose, even if its purpose is not exclusively religious, and is not limited to houses of worship or tax-exempt organizations, or organizations controlled by or associated with a house of worship or a convention or association of churches.”3
Anyone would do well to consider that religious exercise is by no means limited to church services and Sunday schools. It extends to proselytizing, and potentially, harassment of stigmatized non-members in order to compel them to leave a community, acts which have at various times in Western history been known to happen. It’s the kind of activity that drove the Pilgrims to Massachusetts Bay and the Quakers to Pennsylvania. It’s the kind of activity that drove Jews from Europe even before the time of Hitler to escape the many pogroms enacted by Orthodox Christians. One must consider how far this executive order would go in upholding this.
Likewise, religious organizations, as defined in the leaked draft would include organizations like Focus On the Family and Liberty Council, entities defined by the common mission of Evangelicals where allied to affect impressment of individuals through psychiatric treatment and law enforcement.
Section 3 of the original order directed all departments of the Executive Branch to follow a sweeping set of principles and criteria to implement regulations, actions, and policies to enable religious freedom to all aspects of life, education, healthcare, employment and obtaining employment, market participation, and government interaction. Agencies connected with the Executive Branch were to accommodate the religious exercise of all employees unless a compelling governmental interest requires an imposition of some sort, and that to be the “least restrictive.4
Section 4 directed specific responsibilities to the Secretaries of Health and Human Services, Labor, and the Treasury to prohibit adverse action against persons or religious organizations on the basis of a sincerely held religious belief. It also added this language in Section 4(e)(2):
“On the basis that such person or organization 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.”5
It becomes clear that the draft sought to address the pet peeves of the Evangelical Alliance, specifically abortion as in the Roe v. Wade decision and same sex marriage as in the decision of Obergefell v. Hodges, both decisions of the Supreme Court. In other words, if any religious organizations, broadly defined, refuse to allow abortion or force a patient to not accept an abortion, or do any act thought to cater to a same sex wedding, nobody in the federal government will do anything to stop them.
As same sex marriage is concerned, it should be understood that the majority of Evangelicals deem transgender people to be homosexual. The heterosexual marriages of post-operative transsexuals is deemed “same sex marriage” by the majority, much in the manner of the Texas case of Littleton vs. Prange in which the presumption of the plaintiff’s chromosomes being 46 Karotype XY was deemed enough to invalidate the marriage of the plaintiff, rendering her without standing to sue for wrongful death of the husband.6
The implications go far beyond weddings and wedding cakes. One could as easily consider any marriage of a transsexual, whether pre-operative or post-operative to any person of any sex to be “same sex marriage” because the personal declaration of any transgender person may be deemed one or the other by whim under the color of a “sincerely held religious belief.” That’s applicable to refusal to hire, overt and covert discrimination while employed. It also applies to who gets accepted or not accepted as a tenant for an apartment, issues which have long been based upon a landlord’s understanding of the teachings of his church. This was amplified in the original provisions in Section 4(k):
“No agency shall take adverse action against any person or religious organization that is a Federal employee, contractor, or grantee on the basis of their speaking or acting in accordance with the beliefs described in section [sic] 4(e)(2) of this order while outside the scope of their employment, contract, or grant, and shall reasonably accommodate such speech and action when made within the course of their employment, contract, or grant. This provision shall not be construed to diminish or otherwise limit any other protection provided by this order.”7
But Section 4(l) of the leaked draft addressed actual enforcement and the alteration of this in the signed executive order leaves immense flexibility:
“The Attorney General shall establish within the Department of Justice a Section [sic] or working group that will ensure that the religious freedom of persons and religious organizations is protected throughout the United States, and shall investigate and, if necessary, take or coordinate appropriate action under applicable religious freedom laws.”8
Section 5 gave general provisions that determined that the provisions of the draft order would prevail when in conflict with any other ruling, directive, regulation, interpretation, etc.9
It’s easy to see why such an outcry arose from LGBT groups concerning the May 4 signing. In the previous month Patheos quoted Brainerd Baptist Church Senior Pastor Robby Gallaty to declare that Christians “should never stop discriminating against homosexuals, claiming that gays could choose to be straight if they only accept Jesus Christ as their Lord and Savior.” He also was quoted to say, “gays must be put to death” and cited Leviticus 20 as justification.10
If indeed Pastor Gallaty made this declaration as reported, he wouldn’t be the only one. We hear similar from other clergy from time to time, brewing hatreds throughout their congregations which inevitably manifest outside the confines of the church walls. In this context, the draft as leaked would enable such “Christians” to go around killing people they perceive as “gay” including transgender people and anyone they think is “gay” but isn’t. No prosecution would come from federal government agencies in such cases. Enforcement would be left entirely to the states, many of which would only be too happy to turn a blind eye.
The actual executive order as signed on May 4, 2017, retained part of the basic structure of the leaked draft. However the definitions that appear in the draft were removed entirely. Section 2 directed that no federal agency take any adverse action against any person, house of worship, or religious organization. It defines the following:
“As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.”11
So highly political para-church organizations like Focus On the Family get their tax exempt status.
Section 3 of the signed executive order addresses the Secretaries of the Treasury, Labor, and the Health and Human Services “to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.” While not explicitly addressing issues of abortion and contraception in the executive order, these issues are delegated to the cabinet for interpretation. It’s easy to see that the President is shielded from media scrutiny concerning them.12
Section 4 should raise the most questions concerning law enforcement:
“Religious Liberty Guidance. In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”13
This executive order removes the burden of guidance of interpreting religious liberty protections from the President and bestows it upon Attorney General Jeff Sessions.
Sessions has long been cited with respect to his civil rights record and charges of racism. He has drawn heated opposition in the process of ratifying his appointment as Attorney General.14
This provision is particularly disturbing. Though guidelines have from time to time been issued by the Executive Branch, interpretations have traditionally been the job of the judiciary. Worse yet, “interpretations” and “guidance” coming from the Attorney General do not get the same level of media attention as from the President. This doesn’t contribute to transparency in government but decisions become much more shadowy. It’s like kicking the can down the road with a cohort waiting where it lands to whisk it away.
It’s something that, if addressed in the courts, would have to be addressed specifically. A fifth section was added regarding severability. If one portion of the executive order gets struck down, the remainder stays intact.15
Media attention, therefore, needs to focus much more upon the Attorney General’s office than what it has. While the President signed this executive order to the applause of clergy of various religions surrounding him, chances are the directives of the Attorney General may leave other clergy appalled. But chances are they won’t have a chance to learn of their issuance when they happen.
It may be, then, that Equality California should not have cancelled its event after all. The position of the Trump Campaign and the 2016 GOP Platform has never really been repented of in the Trump Administration, despite some temporal compromises concerning its position on China in the face of the North Korean threat. For those of us who are transgender, especially in states without existing civil right protections for them, the green light for theocratic oppression may already have been given by the Attorney General but the masses won’t get much opportunity to see it. Pogroms against LGBT peoples may in fact be ready to begin with impunity at any time.
- Executive Order – Establishing a Government-Wide Initiative to Respect Religious Freedom (n.d.) Web: Southern Poverty Law Center: https://www.splcenter.org/sites/default/files/religion_executive_order.pdf . Retrieved May 3, 2017.
- (n.a.) Cancelled – Unity Rally Against Anti-LGBT Trump Executive Order (May 4, 2017) Web: Facebook Events: https://www.facebook.com/events/285120798606733/ . Retrieved May 4, 2017.
- Op cit, Section 2.
- Section 3, Ibid.
- Section 4, ibid.
- Littleton v. Prange (October 27, 1999) Web: FindLaw: http://caselaw.findlaw.com/tx-court-of-appeals/1079164.html . Retrieved May 5, 2017.
- Op cit, Section 4(k).
- Section 4(l), Ibid.
- Section 5, Ibid.
- Megachurch Pastor Says ‘Gays Must Be Put To Death’ (April 22, 2017) Web: Patheos: http://www.patheos.com/blogs/progressivesecularhumanist/2014/09/megachurch-pastor-says-gays-must-be-put-to-death/ . Retrieved May 3, 2017.
- Washington Examiner Staff. Trump’s executive order on religious liberty: FULL TEXT( May 4, 2017) Web: Washington Examiner: http://www.washingtonexaminer.com/trumps-executive-order-on-religious-liberty-full-text/article/2622142 . Retrieved May 5, 2017.
- Horwitz, Sari. More than 1,100 law school professors nationwide oppose Sessions’s nomination as attorney general (January 3, 2017) Web: Washington Post: https://www.washingtonpost.com/world/national-security/more-than-1100-law-school-professors-nationwide-oppose-sessionss-nomination-as-attorney-general/2017/01/03/dbf55750-d1cc-11e6-a783-cd3fa950f2fd_story.html?utm_term=.357625439b38 . Retrieved May 5, 2017.
- Op cit.