“Religious Liberty” Executive Order Will Limit, Not Enhance, Religious Freedom

May 4, 2017 Today, President Trump signed an executive order that creates many more questions than answers about how the federal government intends to “protect the freedom of Americans and their organizations to exercise religion and participate fully in civic life.” Several of its provisions raise serious cause for concern.

The order—unlike a prior leaked draft—does not single out for special protection particular religious beliefs about sex, marriage, or reproduction. Nevertheless, it still opens the door to agency under-enforcement of federal laws in ways that will harm, not enhance, religious liberty. In particular, Section 4 of the order, entitled “Religious Liberty Guidance,” directs the Attorney General to issue guidance on “interpreting religious liberty protections in Federal law” to all federal agencies. This provision instructs Attorney General Jeff Sessions to interpret religious exemption laws, like the Religious Freedom Restoration Act (RFRA), in ways that may cause significant harm to vulnerable communities.

For example, Sessions could attempt to limit government enforcement of the Family and Medical Leave Act, the Civil Rights Act, the Fair Housing Act, or the Fair Labor Standards Act if he determines that enforcement will burden an individual’s or corporation’s religious liberty in violation of RFRA—even if a court would be unlikely to construe RFRA so broadly. More specifically, he could interpret RFRA to provide an exemption from Title VII of the Civil Right Act to employers who believe they have a religious obligation to proselytize to their non-Christian employees. If RFRA is interpreted by agencies to allow employers, landlords, healthcare providers and others to impose their religious beliefs on other individuals, this will significantly burden religious minorities who may find themselves shut out from participation in civic life.

While this order doesn’t require Attorney General Sessions to interpret RFRA and other exemptions in any particular way, we know that he has supported using ‘religious liberty’ as a tool to advance particular conservative beliefs while harming vulnerable communities—a position that many in Trump’s cabinet share. Furthermore, he has expressed hostility to religious minorities. While in the Senate, he voted against a proposed amendment that opposed placing a religious test on those entering the country, and he has called Islam a “toxic ideology.”

In the coming days and weeks, we will continue to update our analysis. Follow PRPCP’s policy page and blog for all of our most up to date information.