“Promoting Free Speech and Religious Liberty”

I don’t know exactly what the verbiage for the “Promoting Free Speech and Religious Liberty” executive order yet looks like. But, The Nation provided what they claimed was a leaked draft of the proposed order in February. The link will take you to the verbiage of the document, as it was understood in February, as well as commentary on its scope and enforceability.

The draft seeks to greatly expand definitions of “religious organization” and “religious exercise.” It is so overbroad to make available to nearly any individual or organization a claim of religious exercise in order to defend “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.” This is clearly designed to allow people to refuse services on a claim of religious conviction, even in situations where the courts have already ruled that there is no valid claim in accordance with existing statutes, such as portions of 42 USC as applicable to religious accommodation and public accommodation, the 1st and 14th amendments, and the Religious Freedom Restoration Act.

One of the principle concerns is the potential license to discriminate against the LGBTQ community, and this is a genuine concern given the new administration’s track record with respect to rolling back protection for this group. This draft order could be applied to contexts such as abortion and contraception, and a portion of the draft touches on religious political activity. The impact of the broad interpretation of religious exercise and religious organization could leave many without access to contraceptive care, leave many couples without access to marriage licenses (and cakes, I suppose), and allow overt political activity by non-taxable religious groups.

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The order misses the point of the first amendment, as do most similarly targeted efforts. The notion of religious liberty is that the government will neither mandate a religion nor favor one religion over another, and will not limit the individual right to religious expression. Like all constitutional rights, this one does have limits. For example, if your religion calls for human sacrifice you will not be able to fully exercise your religious tenets. The free exercise of any right is inherently curtailed by its impact on others similar rights. It’s perfectly acceptable to believe that gay marriage is wrong. It is not acceptable to prevent a gay couple, who obviously feel differently, from getting married. It is acceptable to limit access to private venues, but not to public venues. The public includes us all. To exclude a group on religious grounds from a public forum implicitly gives preference to one religious belief over another, which violates the very 1st amendment that such efforts claim to seek to protect.

I don’t think it is necessary to list the volumes of statues and recent court cases related to religious freedom for us to all acknowledge that this topic has been a prodigious amount of public discussion on the topic. The outcome of those discussions has been that laws prohibiting gay marriage have been ruled unconstitutional, public servants may not refuse to serve the public on religious grounds, religious discrimination within the workplace is prohibited, places of public accommodation (including bakeries) cannot refuse service on religious grounds, abortion is legal, and contraception should be made available to those who need and want it, even if that means finding an alternate path to avoid burdening an actual religious organizations free exercise. Some parts are more settled than others, at least from a statutory and legal precedent perspective. Ideologically, the struggle continues.

The real problem for this executive order is that it potentially conflicts with current law and constitutional interpretations. As problematic as this order could be if implemented, it is likely to be immediately challenged if signed and suffer the same fate as the immigration bans. It is beyond the scope of the executive to re-write statute or reinterpret court decisions. If the actual order is anything like the draft, it will fall on its face. It is plainly executive overreach as written in the draft. And it certainly misunderstands the concept of religious liberty.

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