Leaked executive order offers religious liberty protections

An alleged draft of a presidential executive order leaked to the media Wednesday urges “respect” for religious freedom and prohibits the federal government from taking “adverse action” against federal employees or contractors for acting or speaking in accordance with their religious convictions.

President Donald Trump did not mention the document during his comments today at the National Prayer Breakfast. The leaked document enumerates existing religious liberty safeguards, adds language from the pending First Amendment Defense Act, and establishes protections from tax penalties related to the Johnson Amendment. Critics called the order legalized discrimination against LGBT persons.

“Religious freedom is not confined to religious organizations or limited to religious exercise that takes place in houses of worship or the home. It is guaranteed to persons of all faiths and extends to all activities of life,” the draft states.

Kelly Shackelford, president of First Liberty Institute, told me the order is the fulfillment of Trump’s promise to provide religious-liberty protections in the post-Obergefell legal paradigm. Leaking the document to LGBT advocacy outlets is “an attempt to gin up fear” in an effort to intimidate the president from signing it, Shackelford said.

Administration officials did not deny the leaked order’s authenticity but said it was one of several drafts circulating, some drafted by outside groups, and might not reflect the administration’s thinking on all issues.

The proposed executive order prohibits federal agencies from taking action against employees or contractors based on speech, action, or lack of action related to marriage, sexuality, gender identity, or abortion. It extends those protections beyond the workplace and insists Americans should be “free to express their viewpoints without suffering adverse treatment from the federal government.”

The order requires secretaries of Health and Human Services (HHS), Labor, and Treasury to issue rules exempting individuals and organizations from compliance with specific laws and regulations for “religious or moral reasons.” For example, HHS must provide exemptions for individuals and organizations that, for religious reasons, cannot comply with the HHS contraceptive mandate.

Shackelford said he believes that provision will provide relief for his nonprofit clients, including Insight for Living, and others facing lawsuits for refusing to abide by the Obamacare mandate that requires employers to provide insurance coverage for contraceptives, abortifacients, or abortions.

The HHS secretary is also required to draft a policy ensuring faith-based, federally funded adoption, foster, and child-welfare agencies receive protection from “discrimination and adverse action” for declining services that would conflict with their religious convictions.

During today’s National Prayer Breakfast, Trump promised to repeal the Johnson Amendment, which threatens the tax-exempt status of non-profit organizations, like churches, for engaging in political speech. The leaked executive order states tax laws cannot be used to penalize religious organizations for statements made about marriage, sexuality, gender identity, or abortion during religious services.

Rumors of the order have circulated since last week, prompting pro-LGBT blogs and media outlets to raise a furor in anticipation of its introduction. The leaked document appears to contradict Trump’s support for President Barack Obama’s executive order prohibiting LGBT discrimination in federal hiring, an order administration officials said the new president doesn’t plan to rescind. That revelation stunned lawmakers who said they had assurances he would.

Shakelford acknowledged an executive order is not the preferred means of implementing religious liberty protections but said it serves as a stop-gap measure until Congress acts. The First Amendment Defense Act (FADA), which prohibits federal government discrimination based on marriage beliefs in tax treatment, accreditation, and federal licensing, has languished in Congress since 2015.

“Through this order, President Trump is expressing a principle most Americans agree upon: The government should never use what people believe as a weapon to attack them or punish them,” Shackelford said in a press release. “If Americans agree on anything, it is that people have a right to disagree in freedom and without punishment.”