The lesbian, gay, bisexual and transgender community read between the lines in what seemed like a harmless executive order last week on religious liberty — and now is concerned it could restrict hard-fought rights.
Notably: A provision that directs Attorney General Jeff Sessions to issue guidance to federal agencies “interpreting religious liberty protections in federal law.”
President Donald Trump signed the order last week, and initially it drew muted criticism from the LGBT community.
But upon further inspection this week, the Human Rights Campaign, the country’s largest gay-rights organization, predicted that the executive order could be used to shield federal employees who refuse to process veterans or Social Security benefits for same-sex spouses,or their children.
Or allow hospitals to deny visitation to same-sex spouses or permit emergency shelters to turn away gay or transgender individuals even if they receive federal funding.
“No American should be forced to choose between the dictates of the federal government and the tenets of their faith,” Trump said last Thursday in a Rose Garden ceremony, surrounded by faith leaders. “We will not allow people of faith to be targeted, bullied or silenced anymore.”
The Justice Department declined on Monday to comment on the executive order or how the department would carry it out.
LGBT groups are pledging they’ll take Trump to court if necessary.
“We are watching and we will challenge any effort by Jeff Sessions or other agencies of Trump’s administration to license discrimination,” said Sarah Warbelow, the Human Rights Campaign’s legal director.
So will groups that oppose same-sex marriage and LGBT rights on religious grounds. Some of those organizations were disappointed that Trump’s order didn’t explicitly allow government employees to deny services or benefits to LGBT Americans for religious reasons. A draft version of the executive order leaked in February contained much stronger language that some preferred.
Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage, said Trump had “punted” the issue to the Justice Department.
“While he may sincerely believe in protecting religious liberty,” Brown said, “his actual executive order does not do so in any meaningful way for the vast majority of people of faith.”
Doing so in other cases has kicked off all sorts of legal action.
Mississippi’s governor signed a law last spring that would have allowed private citizens and public officials to deny services to LGBT people because of “sincerely held religious beliefs.” Citing the 1st and 14th amendments, a federal judge later struck down the statute as “state-sanctioned discrimination.” The state has appealed the judge’s ruling.
A 2015 Supreme Court ruling legalizing same-sex marriage nationwide spurred a raft of legislation at the state and federal level aimed at giving cover to individuals who opposed same-sex marriage on religious grounds.
Advocates for protecting the religious beliefs of government workers found a hero in Kentucky county clerk Kim Davis, who was ordered to jail in 2015 for refusing to issue a marriage license to a same-sex couple.
A bill introduced in the last Congress, called the First Amendment Defense Act, would “prevent discriminatory treatment of any person on the basis of views held with respect to marriage.” It had 172 cosponsors in the House of Representatives, including one Democrat, and 37 in the Senate, all Republicans.
The bill has not yet been reintroduced in the current Congress.
Tony Perkins, president of the Family Research Council, one of the most prominent conservative religious organizations, said it supports that legislation. But for now, Perkins called Trump’s executive action an intermediate step in reversing what he calls “an eight-year war on faith” waged by Trump’s predecessor, President Barack Obama.
“Is it exactly what I wanted? No,” Perkins said of Trump’s executive order. “But it’s a good first step.”
Perkins said Trump’s order enables Sessions to create a consistent policy on religious liberty across federal agencies.
“The benefit of this is there will be uniformity throughout the federal government,” he said.
Some legal experts, however, said Trump didn’t need to issue an executive order to empower Sessions to issue guidance to federal agencies.
Steve Sanders, an associate professor of law at Indiana University, said the move was largely a symbolic gesture designed to please a core part of Trump’s base.
Religious conservatives helped deliver Trump the White House. His vice-president, Mike Pence, is an evangelical Christian who signed a religious freedom law as governor of Indiana. But he had to back off on language state business leaders and newspaper editorial pages considered discriminatory to LGBT Hoosiers.
“This is a payoff to a constituency he thinks he has to take care of,” Sanders said of Trump.
Doug NeJaime, a law professor at the University of California, Los Angeles, and faculty director of the Williams Institute, which studies sexual orientation and gender identity in public policy, said the executive order doesn’t give explicit cover to federal workers.
However, he said, legal challenges to the order will hinge on what Sessions does.
“It doesn’t explicitly do very much,” he said. “At this point, it’s a wait-and-see.”
Last week, the American Civil Liberties Union, which has not been shy about taking Trump to court over his immigration and refugee policies, declined to file suit over the executive order.
Still, James Esseks, an ACLU attorney who oversees litigation for LGBT people and those living with HIV, said just because Trump’s order doesn’t single out LGBT people specifically doesn’t mean it wouldn’t enable discrimination against them.
“That doesn’t mean there’s no threat,” he said. “There’s a big threat. We remain very worried about what this administration will do.”