It has been reported that tomorrow, President Trump plans to issue a "religious liberty" executive order with extremely conservative positions on LGBT rights, gender identity, reproductive rights, and sexuality. It is expected that this order will be similar to the draft leaked six weeks ago, when this post was first published. We are therefore republishing our analysis of the order's many and major constitutional defects.

Soon enough, these issues likely will be litigated in federal court. 

In early February 2017, reports surfaced that the fledgling Trump Administration was considering a sweeping Executive Order on the subject of religious freedom.   A copy of the text can be found here, but a clearer version can be found here.  Although the Administration has not yet published such an Order, rumors abound in D.C. that the leaked draft has been circulating among federal agencies for reaction and comment.  We expect (and fear) that some version of this Order will indeed be promulgated in the near future.  In this post, we comment on the leaked draft, and we concentrate on the principles and policies that will likely be focal points of controversy concerning the Order.

The Order, staggeringly broad and constitutionally questionable in many respects, is framed in five sections: Policy (Section 1); Definitions (Section 2); Religious Freedom Principles and Policy Making Criteria (Section 3); Specific Agency Responsibility to Avoid Potential Violations of Religious Freedom (Section 4); and General Provisions (Section 5).  Section 4’s explicit privileging of those who hold a set of traditional, conservative religious beliefs on sex, marriage, sexual relations, gender identity, and pregnancy has already been the subject of widespread attention.  

We too will focus on this notorious aspect of the proposed Order.  We will analyze the risks that it will present to the government’s aims and the threats it will pose to vulnerable individuals.  But other aspects of the draft, including its potential detrimental effect on the federal workforce and on beneficiaries of government programs, deserve similarly detailed attention.

Introduction:  The Order’s View of Religious Freedom & Privilege

Sections 1 and 2 broadcast the draft Order’s wide reach with respect to who is covered, the religious practices protected, and the privileging of such practices.  Section 1 (“Policy”) declares that the Constitution protects “the fundamental natural right to religious liberty,” and then asserts that the Constitution “ensures that Americans and their religious organizations will not be coerced by the Federal Government into participating in activities that violate their consciences . . . .”  

As a matter of constitutional law, this is just wrong.  Section 1 goes far beyond the Supreme Court’s longstanding view that the First Amendment forbids discrimination against particular faiths, but does not privilege religiously motivated conduct against the incidental impact of general regulation that is not aimed at religion.  By recognizing a right to be free of coercion with respect to any activity implicated by religious conscience, the draft Order erroneously claims a constitutional provenance for a notion of religious privilege that the Supreme Court has repeatedly repudiated.

Section 1’s concept of privilege is accentuated and expanded by Section 2, which declares that the persons who have a “natural right” to religious liberty include “any organization, including closely held for-profit corporations, operated for a religious purpose, even if . . . not exclusively religious.”  Section 2 thus builds on the Supreme Court’s broad interpretation of the Religious Freedom Restoration Act (“RFRA”) in Burwell v. Hobby Lobby Stores, Inc., which held that for-profit corporations may assert religious freedom claims.  And Section 2’s expansive definition of religious exercise, which 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,” likewise is derived from a definition in federal statutory law. The draft Order’s approach to religious freedom principles is thus not drawn from the Constitution at all, but rather from a far more recent and disputed legal tradition.

The draft Order’s specific policy prescriptions are all derived from this non-constitutional (and, in some applications, unconstitutional) notion of religious privilege.  In that respect, the draft’s explicit privileging of religion over competing policy concerns can be usefully contrasted with the approach taken by President George W. Bush in the Executive Order that created the Faith-Based and Community Initiative, EO 13279, renamed under President Obama as Faith-Based and Neighborhood Partnerships. 

These presidential initiatives were designed to cure a problem, driven by Establishment Clause concerns, of excluding faith-based providers of social services from government funding programs. The Bush Order created a right of equal participation in such programs for faith-based charities, so long as they did not use government funds to proselytize or indoctrinate in a faith.  In keeping with themes of inclusion and non-discrimination, Section 2(d) of the Bush Order stated that “organizations, in providing services supported in whole or in part with Federal financial assistance . . . should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to actively participate in a religious practice.”

The currently circulating draft Order on religious freedom is starkly different in its embrace of religious privilege, even if claims of privilege will lead to the exclusion of beneficiaries.  Both of the draft’s policy-specific sections (Sections 3 and 4) reflect this difference.  Section 3, following what has become a standard conservative formulation of the supposed legal force of religion in “all activities of life,” recites as follows: 

Persons and organizations do not forfeit their religious freedom when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts: or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.” 

When taken in context with the rest of the draft Order, this recital extends a concept of religious privilege into a wide variety of federally financed and federally operated activities.

Federal employment 

In keeping with this broad claim of religious privilege, Section 3(c) recites as follows: 

As required by religious freedom laws such as  . . . ‘RFRA’ . . . and . . . Title VII of the Civil Rights Act of 1964 . . ., agencies shall faithfully discharge their duty to accommodate the religion of federal employees and shall not promulgate regulations, take actions, or enact policies that substantially burden a person’s or religious organization’s religious exercise unless the imposition represents the least restrictive means of furthering a compelling governmental interest.

This formula, taken from RFRA rather than the far milder accommodation commands of Title VII, is legally misplaced and destructive in its implications.  The legal error is the apparent assumption that persons who deal with the government voluntarily, as employees, contractors, grantees, or otherwise, can be “substantially burdened” by reasonable conditions that the government imposes on those relationships.  Substantial burdens involve coercive impositions, like a criminal penalty or civil fine for engaging in a religious practice.  When persons choose to enter federal employment or engage in other voluntary financial relationships with the federal government, they cannot be victims of the norms that their choices invite.  As we have argued elsewhere, the assertion that these voluntarily assumed responsibilities are substantial burdens on religious exercise is deeply unpersuasive.

Nonetheless, the proposed executive order would bring all of these many voluntary relationships under the demanding test of RFRA, under which a substantial burden on religion can be justified only if it “represents the least restrictive means of furthering a compelling governmental interest.” This would empower federal employees (as well as grantees and contractors) to interpose their religious will against general and reasonable expectations about how their work should be carried out.

To use an oft-repeated example, an employee of the Social Security Administration who opposes same sex marriage might rely on Section 3 of the Order as grounds to refuse to process a claim for benefits from the surviving spouse of a same-sex couple.  Such a refusal is an affront to the equal dignity and equal marriage rights of the surviving spouse, and a potential administrative nightmare.  For another example, a federal law enforcement officer who has a deep religious belief in racial equality might refuse to protect white supremacists holding a rally.  In these contexts and many others, the government almost always has the “less restrictive means” of finding a substitute for the employee who claims that doing part of her job represents a substantial burden on her religious freedom.  We strongly suspect that the marriage objector would fare far better than the anti-racist in the current Administration, but this is just a reminder that application of regimes of religious privilege are inevitably biased and arbitrary.

Federal grantees and contractors 

Section 4 further aggravates the constitutional and policy problems presented by the Order.  Section 4(c) would drastically weaken the longstanding prohibition on religious discrimination against service beneficiaries by federal grantees and contractors.  That sub-section of the proposed Order specifies as follows:

The Federal Government shall not discriminate or take any adverse action against a religious organization that provides federally-funded child-welfare services, including promoting or providing adoption, foster, or family support services for children, or similar services, on the basis that the organization declines to provide, facilitate, or refer such services due to a conflict with the organization’s religious beliefs. 

That is a stunning departure from well-accepted federal policy.  This proposed Order would permit federally funded providers of family services to exclude, on religious grounds, same-sex couples from child welfare services of all types.  Similarly, this new policy would permit religiously affiliated providers to ignore the needs of minor female beneficiaries for emergency contraception, even in cases where these young women or girls had been forcibly raped.  Indeed, under the draft Order, federally funded service providers would have no duty to refer those beneficiaries to alternative service providers who could offer the necessary aid. 

Nothing in our tradition of religious freedom recognizes the right to be a federal grantee or contractor and to use religious grounds to discriminate against some beneficiaries, or to deny to beneficiaries the services required by the law and necessitated by the beneficiaries’ tragic circumstances.  Importantly, Establishment Clause principles forbid accommodations that significantly harm third parties in the ways invited by Section 4(c) of the draft Order.

Impermissible Privileging of Traditional Views of Sex and Marriage

Section 4(e)(2) singles out for special privileges a particular set of traditional and conservative beliefs about marriage, sexuality, gender identity, and pregnancy.  With respect to a variety of federal policies, the Order would privilege acts taken

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.  

This list of privileged beliefs is similar to that in the proposed First Amendment Defense Act, which various conservative members of Congress have sponsored.  It is likewise a close match with the list of privileged beliefs designated by Mississippi’s HB 1523, which similarly protects those with the preferred beliefs against any adverse state action for acting consistently with those beliefs.  But in Barber v. Bryant, a federal district court in Mississippi ruled HB 1523 to be a violation of the Establishment Clause, because it prefers one set of religious views about sex and marriage to competing religious as well as secular views.  The Barber case is now on appeal to the Fifth Circuit, where we are among the signatories to an amicus brief, arguing that the law impermissibly places the weight of the state behind one set of answers to disputed religious questions.  (Joshua Matz, the publisher of Take Care, is counsel of record on that amicus brief, which has been joined by numerous Church-State scholars.)

The litany of particular beliefs in Section 4 of the draft Order runs afoul of precisely the same objection.  Those who act on traditional views of marriage, sex, sexual orientation, pregnancy, and gender identity are protected against adverse government action; those with progressive religious or secular views of the exact same subjects receive no comparable protection.  It is one thing to identity a specific subject and protect all religious beliefs concerning that issue; it is quite another for the government to avowedly take sides, telling every employee that her rights depend on accepting a particular religious viewpoint.

Note that the list of privileged beliefs in Section 4 appears in a specific provision, Section 4(e)(2), concerned with preservation of charitable status under tax law.  It is thus designed to appear to be innocuous, because no Administration of either political party is going to threaten the tax status of a religious entity based on its views on sex, pregnancy, or marriage.

The other provisions of Section 4, however, explicitly extend the protection of acts taken in accordance with these traditional beliefs to many contexts other than that of tax exemptions.  Most significantly, section 4(k) provides:

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 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. 

The second part of this command—the requirement to reasonably accommodate, within the course of a relationship with the federal government, actions taken in accordance with the protected beliefs—would do violence to a number of significant federal policies.  With respect to employees of federal contractors, section 4(k) would effectively undo President Obama’s Executive Order forbidding federal contractors to discriminate in employment based on sexual orientation or gender identity.  

Moreover, like section 3(c), section 4(k) could be invoked to protect federal employees who refuse to fully respect marriage equality or self-determined gender identity.  And, like section 4(c), section 4(k) would insulate grantors and contractors who, on religious grounds, refuse to serve certain beneficiaries based on their sexual orientation or gender identity, or based upon the federally funded services they need.  

All of these accommodations would harm those legally entitled to the help of the federal government, and thus run afoul of the Establishment Clause.

*  *  *  *  *

There will be time enough to touch on other provisions if and when any such Order is promulgated.  What we have addressed in this post suggests that a sweeping, government-wide Executive Order that unlawfully privileges assertions of religious freedom against competing concerns of government policy would be a matter of profound regret—constitutional and otherwise.

Disclaimer: Joshua Matz, the publisher of Take Care, represents Ira Lupu and Bob Tuttle, among others, in litigation challenging a "religious freedom" law in Mississippi that bears some similarities to the executive order discussed in this post.

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