“Leaked Draft of Trump’s Religious Freedom Order Reveals Sweeping Plans to Legalize Discrimination,” announced The Nation on Feb. 1.
The draft order defines “religious exercise” as an act or refusal to act motivated by sincerely held religious belief, “whether or not the act is required or compelled by, or central to, a system of religious belief.”
One expert told The Nation that current law may not allow the president to implement such “very sweeping” protection.
It would cover “any organization, including closely held for-profit corporations.” By contrast, President Barack Obama’s contraceptive mandate chiefly exempted “houses of worship.”
It would protect a right to speak and act in accord with one’s belief that marriage is a union of one man and one woman, that sexual relations should be within marriage, that “male” and “female” refer to a person’s biological sex, and that human life begins at conception and merits respect. Critics say this protects one narrow class of religious belief, violating the Constitution’s ban on “establishment” of religion.
We don’t know whether President Donald Trump will issue this executive order. But what about criticisms of the leaked draft?
While the First Amendment protects the “free exercise” of religion, a 1990 U.S. Supreme Court ruling made the amendment less helpful to religious believers burdened by a “generally applicable” law.
So in 1993, Congress passed the Religious Freedom Restoration Act. It was sponsored by then-Representative Chuck Schumer, approved almost unanimously by Congress and enthusiastically signed by President Bill Clinton.
In 2000, a bill to strengthen that law passed Congress without objection and also was signed by Clinton.
Does the draft order abandon the Religious Freedom Restoration Act’s bipartisan consensus in favor of partisan bias?
Well, its definition of religious exercise is taken from the Religious Freedom Restoration Act, which protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” The act says this protection should be construed broadly.
Similarly, according to the Supreme Court’s ruling in the Hobby Lobby case, the Religious Freedom Restoration Act requires protecting “closely held corporations” owned by religious believers.
And traditional views on marriage and sex are not confined to any one religion; until five years ago some of them were held by Obama and other Democratic leaders. And the draft order says religious freedom “is guaranteed to persons of all faiths.”
The real basis for attacks on the draft order is the rise of what Mary Eberstadt terms a new “quasi-religious faith in the developing secularist catechism about the sexual revolution.”
This faith’s god is a jealous god, requiring suppression of those who disagree — even if the right to disagree was protected by law and Constitution.
In her recent book, It’s Dangerous to Believe, Eberstadt asks secular liberals to remember that the values of diversity, pluralism and tolerance were once essential to their creed.
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Doerflinger worked in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops.
