A draft religious freedom executive order that will delight conservative evangelicals and outrage liberals reveals sweeping plans by Donald Trump's administration to overhaul anti-discrimination protection for various minority groups.
The leaked four-page draft, obtained by The Nation and The Investigative Fund, would create wholesale exemptions for people and organisations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and transgender identity, and it seeks to curtail women's access to contraception and abortion through the Affordable Care Act.
It would protect 'religious freedom' including when it comes to 'for-profit' corporations "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 document seeks specifically to protect the tax-exempt status of any organisation that "believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognised 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".
The Nation, which spoke to a number of constitutional experts, said that the breadth of the draft order may exceed the authority of the executive branch if enacted.
Marty Lederman, a professor at Georgetown University Law Center and an expert on Church-state separation and religious freedom said: "This executive order would appear to require agencies to provide extensive exemptions from a staggering number of federal laws – without regard to whether such laws substantially burden religious exercise."
Lederman said that the exemptions could themselves violate federal law or license individuals and private parties to violate federal law. He added: "Moreover, the exemptions would raise serious First Amendment questions, as well, because they would go far beyond what the Supreme Court has identified as the limits of permissive religious accommodations."
The leaked draft states that, "Americans and their religious organisations will not be coerced by the Federal Government into participating in activities that violate their conscience."
It defines "religious exercise" as that which extends to "any act or refusal to act that is motivated by a sincerely held religious belief, whether or not the act is required or compelled by, or central to, a system of religious belief".
Ira Lupu, a professor emeritus at the George Washington University Law School and an expert on the Constitution's religion clauses, told The Nation: "It's very sweeping...It raises a big question about whether the Constitution...authorises the president to grant religious freedom in such a broad way."
Lupu added that the draft order "privileges" a certain set of beliefs about sexual orientation and gender identity, held by conservative evangelicals and Catholics.
On Tuesday, the White House announced that it would continue President Obama's executive order protecting federal contractors from anti-LGBT discrimination.
But The Nation, a liberal journal, said that the new draft order "codifies a laundry list of claims advanced by the Christian right in recent years".
Christian groups including the Catholic Church in particular have clashed repeatedly with the Obama administration n recent years over the issue of exemptions on religious freedom grounds.
The full draft document can be read here.
