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Trump order doesn't have much bite, experts say

by analysis by Lisa Keen

President Donald Trump signed an executive order last<br>week protecting "religious freedom." Photo: Courtesy NBC News
President Donald Trump signed an executive order last
week protecting "religious freedom." Photo: Courtesy NBC News  

Pro-LGBT groups were concerned last week that President Donald Trump's new executive order protecting "religious liberty" would be a "license to discriminate" against LGBT people, women, and others.

But upon reviewing the order, it actually does so little that even the American Civil Liberties Union is holding off on taking legal action.

There is a potential for harm for LGBT people from Trump's May 4 executive order, but on the surface, it appears to be more of an invitation than a license for various federal agencies to enable discrimination against LGBT people.

Kate Kendell, head of the National Center for Lesbian Rights, acknowledged that the Presidential Executive Order Promoting Free Speech and Religious Liberty seeks to avoid a "direct fight" with the LGBT community. But she said it is still "taking aim at one of our core principles: separation of church and state."

Lambda Legal Defense and Education Fund said the executive order prompts federal agencies to "ignore" federal laws "restricting political activity by churches claiming tax-exempt status."

"The executive order did not explicitly elevate various anti-LGBTQ views as exempt from anti-discrimination protections, and it is clear that the administration backed away from the draft order leaked in February because of the threat of lawsuits from Lambda Legal and others," said a statement from Lambda Legal.

"... But let's be clear: through [the May 4] executive order, Donald Trump just issued a clarion call to his anti-LGBTQ minions, led by [Attorney General] Jeff Sessions, to use every lever at their disposal to dismantle the progress that we've made over the last eight years," the agency added.

Not everyone agrees with those assessments.

Gregory Angelo, president of the national Log Cabin Republicans, said, "the text of the executive order [is] completely agnostic on LGBT-related matters."

Rich Tafel, a former Log Cabin national president, called the new executive order a "largely symbolic outreach" to religious conservatives and not "an attack on gay groups."

So, what, exactly, does the religious liberty executive order do? Five things: it directs the Trump administration to "vigorously enforce federal law's robust protections for religious freedom." It is already the duty of the administration to enforce federal laws, and the wording suggests Trump considers existing laws protecting religious liberty to be "robust." It also directs all departments, "to the extent permitted by laws," to respect and protect "religious and political speech." The Constitution already provides for the government to do that.

The order directs the Department of the Treasury, "to the extent permitted by law," to avoid taking "adverse" tax action against "any individual, house of worship, or other religious organization on the basis that such individual or organization speaks ... about moral or political issues from a religious perspective." Again, the phrase "to the extent permitted by law" seems to provide for a limit to what the department can do: no more than it already has authorization to do.

The order directs the departments of Treasury, Labor, and Health and Human Services to "consider" issuing amended regulations "consistent with applicable law" to "address conscience-based objections" to the preventive-care mandate under the Affordable Care Act. The ACA mandate covers 45 preventive services, many of which are of heightened relevance to the LGBT community, including screening for breast cancer, HIV, sexually transmitted diseases, depression, and alcohol abuse. If these departments issue such amended regulations, however, the executive order states they must be "consistent with applicable law."

Carl Schmid, deputy executive director of the AIDS Institute, said he hopes "any rule that is promulgated will be narrow in scope, but this is certainly something that we will have to be looking for. We can imagine that some group out there may not want to test a gay person or a transgender individual and say it was based on their religious beliefs. But I think this pertains to covering a service, and I can't imagine anyone would not want to cover something like HIV testing."

Finally, it directs Sessions to issue "guidance interpreting religious liberty protections in federal law." Generally speaking, the U.S. Supreme Court is the final word on interpreting federal law, but an attorney general can issue advisory opinions that – unless overturned by the Supreme Court – could have an adverse affect on civil rights.

It will likely be weeks or months before Sessions issues his guidance.

Meanwhile, the ACLU announced that, after "careful review" of the executive order, it has decided not to challenge the order in court "at this time." ACLU Executive Director Anthony Romero, a gay man, called the signing of the executive order an "elaborate photo op with no discernible policy outcome."

"After careful review of the order's text we have determined that the order does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process," said Romero. "The order portends but does not yet do harm to the provision of reproductive health services."

Just like there was disagreement on the pro-LGBT side of the political spectrum about the new executive order, so there was on the anti-LGBT side.

The National Organization for Marriage, which opposes marriage for same-sex couples, said the new executive order was "empty of any meaningful protections" for opponents of same-sex marriage. The Heritage Foundation called it a mere "shadow" of a draft executive order that was leaked in February that seemed to promise more presidential support for anti-LGBT religious expressions.

But Family Research Council leader Tony Perkins said the executive order is a "significant first step" and that Sessions' guidelines would "ensure religious beliefs and actions are respected and protected." And the Heritage Foundation allowed that, leaving HHS to come up with regulations in this area "is probably going to turn out just fine" for conservatives.


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