Following a day of furious rumors, the White House announced late Monday night that Donald Trump would not, in fact, sign an executive order that would have rescinded discrimination protections covering LGBTQ employees of federal contractors. After the week Trump spent signing executive actions targeting vulnerable populations, from immigrants to Native Americans,it felt like a relief.
But that doesn't mean that the Republican-dominated government has suddenly gone LTBTQ-friendly. The GOP remains hard at work on a variety of other attempts to weaken LGBTQ rights, ranging from efforts to enshrine "religious freedom" to discriminate into federal law to efforts to weaken same-sex marriage rights.
Obama's federal workplace discrimination protections are a big deal. They cover about a fifth of the entire American workforce, or about 28 million people; before the 2014 order, it was legal for federal contractors to fire employees for being gay or gender-nonconforming. Many conservative activists claim its protections force religious groups to violate their beliefs. (The Obama order left intact a 2002 order by President Bush granting exemptions to religious groups with federal contracts. The conflict between the two has yet to be tested in court.)
Trump's decision not to overturn those protections notwithstanding, conservatives are confident that they'll be getting some form of anti-gay animus from this administration. Tony Perkins, president of the Family Research Council, told CNBC last week that he has "every confidence" Republicans will secure exemptions to nondiscrimination laws for religious groups.
On Wednesday evening, the Nation published a leaked version of an alleged draft executive order called "Establishing a Government-Wide Initiative to Respect Religious Freedom." GLAAD quickly noted that its sweeping mandates could be construed to allow a slew of government organizations and businesses to deny services to LGBTQ Americans, including healthcare providers, adoption agencies, schools, and any "closely held" business. "If anything in this document were to become federal law, it would be a national license to discriminate, and it would endanger LGBTQ people and their families," Sarah Kate Ellis, GLAAD president and CEO said in a statement.
Legal experts told the Nation that the provisions of the draft executive order were possibly illegal, though it's unclear whether the draft will ever be signed. (Several drafts of controversial executive actions that have yet to be put in place have circulated since the beginning of the Trump administration.)But what's clear is that religious conservatives are preparing to take advantage of a federal administration receptive to their anti-LGBTQ political agenda.
The most distressing piece of news for LGBTQ advocates is a bill that conservative Republican senators Ted Cruz and Mike Lee and Representative Raul Labrador plan to introduce—the "First Amendment Defense Act" (FADA). It's a reintroduced version of a 2015 bill from Lee and Cruz that failed to gain traction in the House; in December, Cruz and a spokesperson for Lee told BuzzFeed that they expect it to garner the support of President Trump and a Republican-majority House. Though it's likely to be filibustered in the Senate, Trump has promised to sign it in the event it does pass. Even if it won't ever become law, FADA is indicative of the intentions of the Republican right.
FADA would specifically protect discrimination based on two beliefs: that "(1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage." In other words, it would prevent the government from taking action against a person or business that discriminates against same-sex couples, and it would enshrine discrimination against people who have sex outside of a heterosexual marriage into law.
In theory, FADA would provide protection for people who are opposed to heterosexual marriages. It only protects actions taken against queer people who are married—and, strangely, against straight people who have sex before marriage. The bill's language could allow a school to fire gay teachers, or a landlord to evict single mothers, or a bank to deny loans to married same-sex couples.
Though it would be very hard, to say the least, for Republicans to overturn marriage equality, they can still chip away at the Supreme Court's 2015 ruling essentially legalizing same-sex marriage, weakening protections provided to same-sex couplesuntil marriage doesn't mean what it once did.
"I think FADA as a free-standing bill would have a very difficult time getting to 60 votes in the Senate," said ACLU legislative representative Ian Thompson. "The real danger is: Will the Trump administration try to put forth FADA through executive fiat? We definitely think that could be coming down the pipe very soon, and we would certainly be looking to bring a legal challenge."
Republicans are already attempting a weakening of marriage equality in Texas right now. Back in 2014, Houston extended spousal benefits to the same-sex partners of city employees, just as it does for different-sex partners. Conservative taxpayers sued, with the support of Republican state officials, and the Texas Supreme Court will hear arguments in the case in March. Its plaintiffs claim that while states may have to issue marriage licenses to same-sex couples, they don't have to treat those marriages and equal to those of opposite-sex couples.
Of course, Trump's inner circle has plenty of experience in that area. Vice President Mike Pence signed, defended, and then modified an Indiana law that allowed organizations to refuse service to LGBTQ people under the guise of "religious freedom" after subsequent backlash. Trump attorney general nominee Jeff Sessions tried to ban same-sex marriage with a constitutional amendment. UN ambassador nominee Nikki Haley fought to block same-sex marriage when she was governor in South Carolina. Advisor Ken Blackwell said that marriage equality causes mass shootings.
Neil Gorsuch, the Supreme Court nominee Trump announced this Tuesday, could wind up doing the most damage of all; Gorsuch is a strict originalist who backs "religious freedom" arguments that open the door to discrimination against LGBTQ people, and he's sided reliably with religious groups seeking exemptions from nondiscrimination laws. He would be a dangerous addition to the court, keeping the majority that ruled in favor of marriage equality at a slim one-justice margin. It's possible that the Texas case could be heard by a court eager to weaken the 2015 decision that ended marriage bans, or myriad others soon to arise in red states.
It's good that Trump has kept Obama's nondiscrimination order in place (for now). But don't mistake the current administration for one with a charitable view towards LGBTQ people. Republican leadership is hard at work on some of the most dangerous legislation and lawsuits in recent memory, and whatever they're about to unleash has the potential to devastate far more than the 28 million people covered by Obama's order.
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