With the election of Donald Trump came sweeping fear amongst the LGBT activist community that the President would act against their interests, and that America would quickly witness regressive reforms in the wake of Obama’s progressive administration. It seems that the fears of LGBT activists and their allies across the United States may soon be realized, with President Trump signing last week an executive order regarding religious liberty that could see discriminative acts against members of the LGBT community legalized.
This executive order could prove to be a distressing blow, particularly following Obama’s presidency, during which the LGBT community witnessed vast successes such as the Hate Crimes Prevention Act of 2009, and the overturning of ‘Don’t Ask Don’t Tell’. Earlier this year, a four-page draft of Trump’s religious freedom order was leaked to The Nation, which detailed sweeping plans to essentially legalize discrimination under the guise of actions of religious freedom. The draft protects religious freedom in just about every face of life including, “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”. The Nation aptly described the draft order as one that “seeks to create wholesale exemptions for people and organizations who claim religious or moral objects to same-sex marriage, premarital sex, abortion and trans identity”.
The language of the leaked document protects the tax-exempt status of any organization that opposes same-sex marriage, pre-marital sex, and even trans individuals. The Nation also notes that the draft is written so broadly as to construe “any organization, including closely held for-profit organisations” as religious organizations. It is nothing short of a disaster for LGBT individuals and their own freedoms.
Making little mention of the fact that this order would directly contradict his presidential campaign promise that he was a “real friend” to the LGBT community, this executive order will overwhelmingly represent success for Mike Pence, who has previously attempted to sign a Religious Freedom Restoration Act in 2015 as Governor of Indiana. At the time, Pence was forced by widespread criticism to sign amendments to the bill but if the leak is any reflection of intention, this is a stark socially conservative victory for the Vice President. If this executive order is to go ahead as drafted, discrimination against LGBT individuals will effectively be legalized as Pence’s 2015 act intended in Indiana.
However, it is yet to be seen whether this executive order could violate federal laws and the Establishment Clause of the First Amendment to the Constitution. It was speculated with the leaked document in February that sweeping exemptions from laws required by the draft order could themselves violate federal law and that the Office of Legal Counsel could not certify the legality of such an order. It is yet to be seen what the next week will bring but if President Trump is to make good on his promise to “preserve and protect” religious liberty, this could spell disaster for a social movement that has aimed to establish LGBT rights in the United States decisively through legislation.