President Trump is considering how to allow Americans to opt out of complying with federal policies and regulations on the grounds of religion, White House press secretary Sean Spicer said Thursday, a move that critics said could open the door to discrimination on the basis of sexual orientation, gender or gender identity.
“There’s clearly a lot of evidence in the last couple of years of the government coming in with regulations and policies that have, frankly, denied people the ability to live according to their faith,” Spicer said during his daily briefing. “People should be able to practice their religion, express their religion, express areas of their faith without reprisal. And I think that pendulum sometimes swings the other way, in the name of political correctness.”
Spicer’s comments, which came on the same day Trump told the audience at the National Prayer Breakfast that his administration “will do everything possible to defend and protect religious liberty in our land,” could signal a sea change in how the federal government balances protections for gay, transgender and reproductive rights against individuals’ religious objections.
Administration officials are considering a proposed executive order, a draft of which was obtained by The Washington Post, that would provide individuals and organizations wide latitude in denying services, employment and other benefits on the basis of their religious beliefs, though Spicer emphasized that Trump had no immediate plans to issue a directive on the issue.
“There are a lot of ideas that are being floated out,” he said. “But until the president makes up his mind and gives feedback and decides that that’s final, there’s nothing to announce.”
The proposal, titled “Establishing a Government-Wide Initiative to Respect Religious Freedom,” is one of several dozen draft directives written on a range of topics by people within the administration, on the transition team or working for outside groups.
Trump did not discuss any specific actions he might take at the National Prayer breakfast, but said: “Freedom of religion is a sacred right, but it is also a right under threat all around us.”
In the event that the order is actually issued, multiple groups are already preparing to challenge it on the grounds that it effectively sanctions discrimination against lesbian, gay, bisexual and transgender Americans, women and minorities.
Lambda Legal chief executive Rachel Tiven said in an interview that it amounts to “an invitation to theocracy. It is the privileging of some religions over others, and an invitation by members of those religions to flout the law.”
While the draft document does not mention Christianity by name, it specifically outlines views held by conservative Christians — including opposition to abortion, homosexuality, same-sex marriage and the idea that a person’s gender can differ from their anatomy — as beliefs deserving protection.
The measure prohibits the Treasury Department from penalizing or denying tax benefits to any person or organization who believes, 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 and as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception.”
“It reads like a wishlist from some of the most radical anti-equality activists,” Human Rights Campaign President Chad Griffin said in a statement.
Charles Haynes, vice president of the Newseum Institute/Religious Freedom Center said in an email that “granting broad exemptions when federal funds are involved will upend existing protections” for LGBT Americans as well as others.
But the draft language drew praise from some conservatives, who said the reaction on the part of rights groups was exaggerated and that the order language is not only lawful but essential for Trump to make good on his promises to protect Americans’ right to practice their religion.
“These protections take nothing away from anyone — they simply ensure that the public square remains open to all religious voices, even when those voices diverge from the government’s view on contested questions,” Ryan T. Anderson, senior fellow at the Heritage Foundation, wrote in a blog post Thursday. “They protect diversity and pluralism and tolerance.”
The U.S. Conference of Catholic Bishops on Thursday urged Catholics to urge Trump to sign an executive order on religious freedom, listing similar issues raised in a draft.
Expanding religious liberties has been a central issue for social conservatives since 2015, when the Supreme Court ruled that same-sex couples not only have the right to wed but that their unions are equal under the law to heterosexual marriages.
Conservative groups have also pushed for greater religious protections since the Obama administration, under the Affordable Care Act, directed employers to cover birth control without a co-pay as part of their company health plans. The rule was challenged by several companies, including arts-and-crafts chain Hobby Lobby, leading the Supreme Court to rule that certain companies could opt out of the requirement if it conflicted with the owners’ religious views.
Spicer said Trump sided with Hobby Lobby and similar groups. “I think it’s a pendulum and where the president is, is that he wants to make sure that you don’t penalize someone for wanting to express their faith.”
However earlier this week, the White House issued a statement saying it would uphold a 2014 executive order barring discrimination against federal workers and employees of federal contractors on the basis of sexual orientation and gender identity after a different draft directive circulated that would have reversed the policy.
“President Trump continues to be respectful and supportive of L.G.B.T.Q. rights, just as he was throughout the election,” the White House said.
A number of states have introduced religious freedom bills aimed at protecting the rights of individuals, organizations and businesses to refuse to condone or participate in a same-sex wedding. But their efforts — which expand on the bipartisan 1993 federal Religious Freedom Restoration Act (RFRA) — have been vociferously opposed by rights groups, who have said the measures could also hurt single mothers and non-Christians and that they essentially give businesses the right to refuse services to gays and transgender people.
The debate flared notably in Indiana, when Vice President Pence, then serving as the state’s governor, signed a controversial Religious Freedom Restoration Act that led to a national outcry as well as boycott by celebrities, companies and sports teams. Pence and Republicans in the state legislature eventually bowed to pressure and softened the measure.
States have in recent years tried to shore up religious liberties in other ways, and in a variety of contexts. Michigan, for example, passed a law allowing faith-based adoption agencies to refuse placements to households led by single parents or same-sex couples. Mississippi enacted a measure that provides protections for those who act on their religious opposition to same-sex marriage, sex outside of wedlock and changing one’s gender. That law has been enjoined in federal court and is still being litigated.
The directive under consideration at the White House, however, goes further than many of the state proposals. While it includes a provision that says agencies “shall provide protections and exemptions consistent with” the Civil Rights and Americans with Disabilities Acts, it defines religious beliefs so broadly it appears that any group could be denied services on those grounds.
State religious freedom laws, moreover, establish a compelling state interest test, but do not determine the outcome. The proposed order preemptively protects some religious views in situations where these claims clash with LGBT and reproductive rights.
A case involving religious beliefs emerged at the state level in 2015 when Kentucky county clerk Kim Davis declined to issue a marriage license for a same-sex couple based on her religious beliefs. Under the White House’s draft proposal, a federal employee who did not want to issue, for example, Social Security death benefits for a same-sex surviving spouse for religious beliefs would not be punished, according to David Herzig, a professor at Valparaiso University School of Law.
“It is problematic because everyone could effectively pick the law that applied to them,” Herzig said in an email.
The draft proposal would also essentially allow churches and other tax exempt organizations to be political, a violation of the 1954 Johnson Amendment barring churches and other nonprofits from endorsing political candidates. On Thursday Trump said he would “totally destroy the Johnson Amendment,” echoing a pledge he made on the campaign, though Congress would have to vote to repeal it.
The directive would, Herzig said, violate an opinion written by Justice Antonin Scalia in 1990 in a case involving members of a Native American group that would use peyote as part of their religious practices. The members were fired for their drug use and then denied unemployment benefits, later claiming this was a violation of their First Amendment free exercise of religion.
“They are so unconstitutional that I am confident that we will win in court,” Tiven said of the document’s wide range of provisions, though she added even a legal victory could not erase the message Trump would be sending if he signed it. “When the federal government says feel free to discriminate against anybody you want, and we think queers are disgusting, even if we succeed in court — which we will — it creates a climate of bullying of intolerance.”
Sarah Pulliam Bailey contributed to this report.