The mixed reviews of President Trump’s religious liberty executive order reflect two simple facts. First, by itself the order doesn’t do or change much.
The ACLU tweeted that it had expected to be in court today over the executive order but instead concluded the order did little or nothing to change the status quo:
Trump’s assertion that he wished to ‘totally destroy’ the Johnson Amendment with this order has proven to be a textbook case of “fake news.”
— ACLU National (@ACLU) May 4, 2017
Trump merely provided a faux sop to religious conservatives and kicked the can down the road on religious exemptions on reproductive care.
— ACLU National (@ACLU) May 4, 2017
They could be right. But the second fact is this: Trump’s executive order is potentially important depending on what various government agencies do with his instruction.
The Obama administration left a poison pill behind in the form of instructions to every federal agency and Cabinet official that legal bans on “sex discrimination” now include sexual orientation and transgender discrimination, without any new religious liberty protections for same-sex marriage dissenters.
These instructions have circulated through the various agencies producing new rules, new guidance instructions, and new “dear colleague” letters.
The Obama Department of Education threatened schools with the loss of federal money if they failed to let biological males who identify as female shower with girls, play on girls’ sports teams, sleep in the same room with girls on school trips, etc. This drastic reinterpretation of Title IX’s ban on sex discrimination is now before the courts. We celebrated an early victory here at The National Pulse when the Departments of Justice and Education withdrew from asserting this interpretation in a court case, leading the Supreme Court to send the issue back to the lower courts.
The Obama Department of Education also issued similar “Dear Colleague” letters threatening withdrawal of funds on other issues. According to a Senate report, “In 2012 alone, the Department [of Education] released approximately 270 ‘Dear Colleague’ letters and other electronic announcements.” “Those that resisted stood to lose federal funding,” Forbes notes. President Trump’s April 27 executive order required a systematic review of these new intrusions into local control of schools, another potentially good sign.
Similar bans on sex discrimination affect not just public schools but any college or university that accepts any federal funds at all (including accepting students who receive federal aid or loans).
And when it comes to religious freedom and healthcare, the Obamacare mandates are only half the story. The Equal Employment Opportunity Commission (EEOC) ordered Belmont Abbey College to cover abortion pills and contraceptives on the grounds that failing to do so violated the 1964 Civil Rights Act.
“By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives,” wrote Reuben Daniels Jr., the EEOC Charlotte District Office Director in the determination
And then there’s the case of a Catholic high school in Georgia which was told by the EEOC they could not fire teachers who entered gay marriages.
Thanks to these EEOC rulings, the ACLU has been emboldened to press new cases, including one against a North Carolina Catholic school which fired a teacher for entering a civil same sex marriage. The ACLU is relying on Obama’s interpretation that bans on sex discrimination in Title VII now apply to discrimination against gay married couples. Similarly, a Methodist church in Georgia is being sued for firing a choir director for being openly gay.
Homeless shelters and battered women’s shelters which receive HUD grants have been told they must permit biological males who identify as female into their women’s shelters. If other battered women object or feel unsafe? Too bad.
Even the USDA has gotten involved. Don Vander Boon, who owns a Michigan family meat packing business, says he was accused by the USDA of creating a hostile work environment. His crime? He put one essay opposing same-sex marriage on a work table amid others promoting the opposite opinion. The meat inspectors, quick to spot a danger to the public health, actually sat him down and said they would refuse to certify his meat as healthy unless he removed that essay — proving that even meat inspectors seem to have turned into the morality police.
Trump’s first step troubles religious conservatives because it deflects attention and responsibility. But that could be a smart move if the Trump administration is serious about uprooting the Democrats’ reinterpretation of traditional views of sex and marriage as bigotry banned by law.
However, many of the most aggressive agencies are not within the President’s direct control. Here, making a difference may require new appointees.
There are currently two positions vacant at the EEOC. One is a commissioner, and the other is the General Counsel. Will Trump appoint a lawyer who will reverse the federal power grab threatening religious liberty?
That will be an important sign that the ACLU and Trump’s conservative critics were wrong to dismiss this executive order as a mere “sop” to religious conservatives.
Photo credit: Gage Skidmore