Congress Casually Files LGBT Rights Bill; Trump and Pence Pass “Religious Liberty” Executive Order

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We already knew that despite his claims on the campaign trail, Trump is no friend to LGBTQ people. And of course we already know that Mike Pence would just as soon hit us in the face with a sack of Bibles as make eye contact with us. So it’s not a surprise that Trump has passed a new executive order on “religious liberty” — not in the sense of actual religious liberty, but in the vein of the Religious Freedom Restoration Acts that empower people and organizations to deny access and services to LGBT people and others.

The EO is assumed to be attributable to Mike Pence, an attempt to nationalize the similar religious liberty bill that he signed into law as governor of Indiana.

If reading the headlines on this feels like déjà vu, it’s because there was already one attempt at this bill. Back in February, a draft of a religious EO was leaked to the Nation. The language it included described alarmingly broad “religious exemptions,” and mirrors Pence’s original religious liberty law in Indiana in that it tries to reach beyond what even the many, many other religious liberty laws legislate.

Two years ago, ThinkProgress wrote of Pence’s Indiana bill that “…the bill was written differently from other RFRAs in a way that seems designed to enable discrimination. The bill specifically states that individuals who feel their religion has been burdened can find legal protection in the bill “regardless of whether the state or any other governmental entity is a party to the proceeding.” In fact, it is this very exception that makes Indiana’s RFRA, along with those newly proposed in several other states, a significant concern for the LGBT community.”

In February of this year, the Nation wrote of the leaked executive order draft that it “… construes religious organizations so broadly that it covers ‘any organization, including closely held for-profit corporations,’ and protects ‘religious freedom” in every walk of life: “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.'” In short, both pieces of legislation have an air of Mike Pence about them. They’re intentionally pushing the borders of what “religious freedom” usually entails, broadening the privileges of the Christian right while gutting the rights of the marginalized.

In theory, the February executive order was withdrawn to be rewritten after it was received poorly. In actuality, however, Politico reports that “one influential conservative who saw the text said it hasn’t been dialed back much—if at all—since the February leak. ‘The language is very, very strong,’ the source said.”

Although the text of this draft of the EO hasn’t been released, so we still have no real idea what it actually says, GLAAD has already come out with a statement saying that this EO is “nothing more than a license to discriminate.” The ACLU has indicated that if the EO does constitute a “license to discriminate,” they’ll sue, following the thrust of their lawsuits against the multiple attempts at a Muslim ban.

But how will a federal EO that mimics state-level anti-gay RFRAs work, really, especially given the fact that many states have inclusive non-discrimination laws on the books? An executive order isn’t a law, really, but exists in a kind of netherworld between “legislation” and “guideline.” What would happen if a case went to court that pitted it against a nondiscrimination law? Well, 200+ members of Congress want to find out: they filed a bill yesterday to add sexual orientation and gender identity to the Civil Rights Act of 1964 — the Equality Act. Openly gay legislators Tammy Baldwin and Patrick Maloney were present at the introduction ceremony discussing the bill’s purpose, with Maloney saying “People will still discriminate if it’s illegal. But it should not be legal to discriminate.”

This isn’t the first time a similar attempt has been made; the Equal Rights Amendment to the Constitution, first introduced in 1923, would have ensured “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” a clause which some feel would provide some measure of legal protection to LGBT people in the same way that Title IX, which forbids discrimination on the basis of sex, is increasingly being used as a legal argument in defense of trans and gender nonconforming people. Almost 100 years later, the ERA still hasn’t been successfully ratified into the Constitution, although the amendment did see increased interest after Trump’s election and a campaign to revive it.

Passing the Equality Act is going to be a tough sell; the bill has only one Republican supporter, Rep. Ileana Ros-Lehtinen of Florida, who is set to retire soon. It’s by no means a sure or even probable thing. Even if it doesn’t pass into law, however, Trump’s prospective executive order still faces a hairy and confusing future. Language and interpretation of religious liberty laws is often vague, intentionally allowing for generous interpretation by conservative courts; if the unnamed sources on the new draft of the EO are to be believed, the language in this makes even broader room than usual. This means that how the EO actually works in concert with state laws and individual constitutional liberties would be up to states to decide in their court systems, when inevitably lawsuits are filed concerning the conflict of one party’s constitutional rights and another party’s bigotry justified by religion. (The language of these laws is usually restricted to private citizens, meaning that marriage licenses and public accommodations for LGBT people theoretically shouldn’t change — although, as the Nation pointed out in February, the language on the original EO draft was extraordinarily broad.) That setup is a recipe for an ugly patchwork of different state legalities surrounding LGBT people’s basic rights, and eventually a big lawsuit that may make it up to the Supreme Court — one that now has Neil Gorsuch on it.

When Mike Pence signed his Indiana RFRA into law, he had faced such intense opposition to it that he performed the signing in private — no public and no press allowed, only “supportive lawmakers, Franciscan monks and nuns, orthodox Jews, and some of the state’s most powerful lobbyists on conservative social issues.” He knew then, and knows now, that license to discriminate in the name of religion isn’t something America as a whole wants or needs — he’s gone from a closed-door signing ceremony to an executive order that legislators and the public don’t have a chance to weigh in on, without even allowing the language to be publicly available. When he passed the Indiana RFRA in 2015, “so many calls flooded the governor’s office that the phone system was temporarily overwhelmed.”

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

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  1. Well this was a terrifying thing to read after finally watching the first 3 episodes of The Handmaid’s Tale last night, and then spending this morning in a deep dive of the various recaps and analyses of it.

  2. This is scary if this passes(which I hope it doesn’t). I dunno what protections I will have as a trans queer Jew. Can states do something about it? Like I’m in California, can they pass another state law that negates this?

    I know this is mainly aimed to protect cis-white Christians(more than likely non-Catholics); but, what happens if it’s a Christian steps on non-Christian’s religious freedom? Like can I use this against the system the next time I get a cis white Christian tries convert me again?

    • Unfortunately, it isn’t really a question of it passing — executive orders are enacted directly by the President, they don’t need the approval of Congress, and there won’t be a vote on it. The only way it won’t come into being is if the administration itself decides not to go forward with it — which is possible, if something convinces them it’s not in their best interest.

      There isn’t a clear answer, unfortunately, to whether state laws can be used to protect people from this EO. Ultimately, the question of how to interpret both the executive order and other laws that address LGBT protections would be left up to individual courts when lawsuits are inevitably filed; the only way there would be one clear directive on that is if/when the question makes it to the Supreme Court, which would take years.

      The question of whether RFRAs can be used to protect marginalized groups is an interesting one — the history of “religious liberty” laws in the US is actually one of attempting to protect minority religions; the original case that prompted them was Native people being criminalized for peyote usage for spiritual purposes. The specific example you’re using, someone trying to convert you, isn’t exactly what the law ostensibly addresses — the idea originally was that people shouldn’t be prosecuted for doing things that are central to or related to their religion, and now the religious right’s idea is that no one should be “forced” to perform actions that might be contrary to their religious ideals — like baking a cake for a gay wedding, etc. There are definitely legal interpretations of this that could be relevant to marginalized people, and I’m curious about whether that will be a tactic people end up using!

      • Yeah, defying EOs usually comes down to “punish first, litigate second” so someone, or quite a few someones, would have to be negatively impacted and then sue. For example, the recent Muslim bans (excuse me, “travel bans”) which turned away people at departing airports and detained others at arriving airports being rule unconstitutional in court.

        Another option is a state-by-state defense. Shortly after Indiana passed its RFRA, it had to introduce an amendment as a new bill to explicitly protect LGBTQ citizens from discrimination. The whole thing still leaves open some terrible gray areas, but the good news is that public outcry can produce protective legislation in response.

        So, donate to the ACLU or Lambda Legal if you can, and also talk to your lawmakers (state lawmakers too/especially!) to voice your concerns regarding religiously-based “legal” discrimination.

  3. Get mad, stay mad. To give these people an inch is to give them our necks. Keep fighting, keep shouting, kicking, screaming and interfering.

    LGBT citizens in American are under full assault from all three branches of government. We have tried diplomacy and it has failed us; we have tried democracy and it has scorned us; we have asked for mercy and been rewarded with cruelty. Our options now are to begin fighting in earnest, or die wishing we had.

    They are hitting us with everything they have, counting on our continued unwillingness to do the hard work of resistance.

    It’s time to hit back.

  4. I was reading about this leaked EO today around the same time a co-worker refused to turn off their broken fan, as it made the most grating noise imaginable, and I felt like I truly descended to a new level of Hell.

    Anyway, guess I’ll preemptively donate to ACLU…

  5. Between the (potentially) impending EO and the vote on the AHCA tomorrow, I’m at a loss. I’ve stayed closeted about being a non-binary trans person and I know I currently have some cis-passing privilege that will insulate me from some of the consequences should this awful order be signed and horrendous health bill be passed. But it feels like a part of me withers away every time I recognize I am too afraid to come out right now in this climate.

  6. I wonder what will happen if this is enacted and non-Christian conservative religious people start discriminating against those this law was designed to “protect”?

    I have to admit, I’d probably test the waters if I was a business owner. I’m not sure I’m a big enough person not to give them a taste of their own medicine.

    • I kind of want to try it too, but I’m in coastal California, but I also need the customers.

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