Former Ohio Secretary of State Ken Blackwell, who has served as domestic policy chair of President Donald Trump’s transition team, told me in an interview on SiriusXM Progress that the controversial “religious freedom” order that leaked to the press a few weeks ago is very much on the way, even though White House officials had played it down.
Earlier this month, The Nation’s Sarah Posner reported on the draft order, which would allow exemptions for those who oppose same-sex marriage, premarital sex, abortion, and trans identity, among many other things:
The four-page draft order, a copy of which is currently circulating among federal staff and advocacy organizations, 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.
At the time, Trump administration officials claimed the draft was among hundreds of draft orders circulating within the administration. ”We do not have plans to sign anything at this time but will let you know when we have any updates,” Sarah Huckabee Sanders, a White House spokesperson, told ABC News at the time.
But Blackwell, a senior fellow at the Family Research Council (deemed an anti-LGBTQ hate group by the Southern Poverty Law Center), said in our interview at the Conservative Political Action Conference (CPAC) over the weekend that the order is far from dead. He also confirmed that the former director of Family Research Council’s Center for Religious Liberty, Ken Klukowski, had “actually structured” the draft order as a legal advisor to the Trump transition team. Klukowski, who is now a senior attorney at the Liberty First Institute and a Breitbart contributor, is one of the lawyers “in the process of redrafting it,” Blackwell said, hinting that the original order may have been perceived as being too vulnerable to a legal challenge.
“In the final analysis, what we want is an executive order that will meet the scrutiny of the judicial process,” he explained. “If there is no executive order, that will disappoint [social conservatives]. But a good executive order will not. So we’re still in the process.”
Blackwell envisions the “anchor concept” of the order as one that will allow people with devoutly religious beliefs to turn away LGBTQ people in the course of business.
“I think small business owners who hold a religious belief that believes that traditional marriage is between one man and one woman should not have their religious liberty trampled upon,” he explained. “I would imagine that that will be, strongly and clearly, the anchor concept [of the order].” (In an interview with me at the Republican National Convention in 2008, Blackwell had explained that he doesn’t view LGBTQ people as a class of people who are discriminated against, but rather sees homosexuality as a “compulsion that can be contained, repressed or changed.”)
Asked for comment about Blackwell’s statements at CPAC, Klukowski said that “because it’s been publicly disclosed by people on the transition team that I worked on the transition,” he was “not at liberty to speak about” the order specifically.
“More broadly and as a private citizen [however],” Kuklowski added, “on the president and religious liberty: The president said when he was a candidate that there is a war on Christianity in America. And as someone who is a religious liberty lawyer who frequently represents the evangelical and Catholic communities in this country, that’s exactly the sort of language that most people in that situation use. There has been unprecedented hostility against people of devout faiths in recent years. So the problem is there. It’s been clearly defined. The president is aware of it.”
Kuklowski said there are several routes to securing “religious liberty,” including the “single most important thing,” which is putting constitutional “originalists” on the federal courts and on the Supreme Court. And he said that Donald Trump, who promised he’d put originalists like the late Justice Antonin Scalia on the high court, “is keeping that promise” as president with the nomination of Neil Gorsuch, who is also an originalist.
In terms of “administrative actions” such as an executive order, Kuklowski said there are “various types of actions” that Trump could take, and he referred to “federal law and federal programs” that the president could affect. (He acknowledged that state laws protecting LGBTQ people could only be overturned via the “federal judiciary,” again stressing the importance of putting originalists on the federal courts.)
“And I’m confident,” he continued, “that the president is showing ― much to the shock of many establishment people who said, ‘There’s no way this’ll happen’ ― that he keeps his promises, even when they’re things that an establishment player would never do. And I’m confident that he’s going to keep his promise when it comes to protection of religious liberty as well.”
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