The Trump administration has put in place many of the tenets of an extreme “religious liberty” order that was leaked earlier in the year ― and more is no doubt coming.
LGBTQ activists and allies thought they’d dodged a bullet. But in fact, we were shot in the back.
Let’s review: On February 1 of this year, Sarah Posner at The Nation published a leaked draft of the executive order ―“Establishing a Government-Wide Initiative to Respect Religious Freedom” ― that Donald Trump apparently was going to sign. And the publication of it created a firestorm. As Posner described it:
The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act...Language in the draft document specifically protects the tax-exempt status of any organization that “believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”
After a furious backlash driven in the media by progressive activists, LGBTQ and women’s rights leaders, the administration downplayed the order and distanced itself from it, saying the order was just one draft among many drafts circulating and written by advocates:
White House officials told ABC News that the draft appears to be among the hundreds of possible executive orders that are circulating — drafted by the Trump transition team, the White House policy team or by outside groups — and that not all reflect administration thinking or likely policy. One official did not say who drafted this possible order but did not dispute its authenticity.
“We do not have plans to sign anything at this time but will let you know when we have any updates,” said Sarah Huckabee Sanders, a White House spokesperson.
Legal analysts had also stated in much of the media that such a broad order would not stand up to judicial review, and the ACLU and others threatened lawsuits. Coming on the heels of the administration’s court losses on the Muslim ban, this seemed to put the White House on the defensive. By no means were activists placated by the White House distancing itself at that time, but at least the White House was on the run a bit.
Three weeks later, at the Conservative Political Action Conference on February 25, I interviewed Trump transition official Ken Blackwell, who told me the order was most certainly coming. Blackwell is a senior fellow to the anti-LGBTQ Family Research Council. Blackwell also brought into our conversation former director of Family Research Council’s Center for Religious Liberty, Ken Klukowski, whom he said had “actually structured” the draft order as a legal advisor to the Trump transition team and who was, according to Blackwell, “in the process of redrafting the order.”
Blackwell envisioned 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. Clearly alluding to legal challenges, he said that it must, however, “meet the scrutiny of the judicial process” and said, “we’re still in the process.”
Kuklowski, who had not publicly acknowledged that he was on the transition team, couldn’t comment in that regard but “as a private citizen” said there are several routes to securing “religious liberty,” and did add that getting conservative judges like Neil Gorsuch on the courts was key too.
The hints of the insidious strategy that would eventually transpire ― and the determination of anti-LGBTQ forces ― were all there in those comments.
Yet, on May 3, LGBTQ activists breathed a sigh of relief.
“Trump Signs Religious Liberty Executive Order That Appears To Leave LGBTQ People Alone” went the headline on HuffPost. And it was true, enough so that some anti-LGBTQ advocates were furious. Ryan T. Anderson of the Heritage Foundation slammed the order as “woefully inadequate.” David French at National Review called it “worse than useless.” Brian Brown of the anti-gay National Organization for Marriage said it “falls far short of what is needed to protect people of faith from governmental persecution.”
But the Family Research Council (FRC) praised the order, which mostly amounted to letting churches get involved more in politics, and FRC didn’t criticize its omission of anti-LGBTQ or other socially conservative directives. And that’s because they obviously knew what was coming down the pike.
Realizing that there would be yet another media firestorm and perhaps a tougher legal challenge if Trump signed a broad order, the White House clearly soon went in the direction of putting the components of the order in place piecemeal, something the ACLU had actually warned about, filing a lawsuit in July for all the records surrounding the original order.
What we have in fact seen is much of the original order put in place in little pieces here and there, sometimes meeting with a bit of media backlash, but mostly getting in under the radar or on the media’s back burner.
In recent weeks, the Trump White House, Justice Department and other departments have:
―Signed a memorandum, the “Federal Law Protections for Religious Liberty,” in which Attorney General Jeff Sessions defined 20 sweeping, broad principles about religious freedom, and how discrimination by employers and businesses based on their religious beliefs was perfectly acceptable ― and obviously that would also mean according to their religious opposition to gay, lesbian, bisexual and transgender people.
―Banned transgender people from the military, making them a target for discrimination in all other areas in which the government might target them.
―reversed the Obama Department of Justice’s decision that transgender people are protected against discrimination under Title VII of the 1964 Civil Rights Act, allowing for discrimination against transgender people in businesses across the country.
―rolled back the birth control mandate under the Affordable Care Act ― again, using moralistic religious arguments about how it promotes “risky sexual behavior” ― creating a situation in which millions of women could go without birth control.
All of these elements and more directives that the administration has moved forward on ― as well as others that it surely will be moving forward on in the future ― were in the original religious liberty executive order.
And now they’re in place, with much less pushback in the media than the original order ― and just in time for Trump’s speech on Friday to Family Research Council’s annual Values Voter Summit.
The “religious freedom” order we thought we’d beaten back is in fact here. This entire strategy shows the insidiousness and determination of anti-LGBTQ forces. And it shows how and why we must be on guard always and stay very much in the fight.
Follow Michelangelo Signorile on Twitter: www.twitter.com/msignorile