US: How the Religious Liberty Executive Order Licenses Discrimination

The Trump administration’s draft religious liberty executive order, leaked in February, was explicit in its directives and sweeping in its implications. The order President Donald Trump signed in May—the “Presidential Executive Order Promoting Free Speech and Religious Liberty”—rather than formally codifying a view of religious liberty or instructing federal agencies on how to interpret the law, tasks the U.S. attorney general—currently Jeff Sessions—with advancing his interpretation of religious liberty through administrative guidance.* Sessions has already taken steps to oppose workplace protections against discrimination for lesbian, gay, bisexual, and transgender (LGBT) people. Now he will begin extending protections for those seeking a license to discriminate.

In recent remarks to the Alliance Defending Freedom, classified by the Southern Poverty Law Center as an anti-LGBT hate group in part for opposing LGBT rights and supporting a marriage equality ban, Attorney General Sessions suggested he will soon issue guidance dictating how agencies should interpret the Religious Freedom Restoration Act (RFRA), which was passed to protect people from being discriminated against on the basis of their religion. RFRA requires the government to provide a “compelling reason” to “substantially burden” religious exercise. Sessions will likely interpret the “compelling reason” requirement more strictly and the substantial “burden” requirement much more broadly, which would turn this protection against discrimination into an affirmative right to discriminate.

Closely held corporations can already dodge contraceptive coverage requirements under the Affordable Care Act (ACA) by citing religious beliefs thanks to the Supreme Court’s Hobby Lobby ruling. If Sessions pushes an inverted interpretation of RFRA, no burden on religious belief would be too minor to exempt an organization from complying with federal law. Corporations and organizations receiving taxpayer dollars will get to pick and choose which federal regulations they will follow. If someone challenges Sessions’ interpretation and the U.S. Supreme Court affirms Sessions’ view, this executive order will have changed the law for a lifetime. Read more via American Progress