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Religious Tolerance logo


2017-MAY

Part 3

Remarks About the Draft Executive
Order. The Final Text of the
Executive Order as Signed:

No hate speech flag 1

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This topic is continued here from the previous essay.

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Webmaster's comment: [bias alert]:

On the matter of "human life," the statement in the executive order included in the previous essay that life begins at conception is controversial. However, strictly speaking, it is an actual fact:

According to the current scientific definition of "life," an organism that is alive must be meet seven requirements: It must be composed of cells, and able to:

"maintain homeostasis, undergo metabolism, grow, adapt to the environment, respond to stimuli, and reproduce."

The precursors to conception -- one spermatozoon and one ovum -- are not considered alive because they are missing one requirement: neither can reproduce. That is, one spermatozoon cannot split and become two spermatozoa, and an ovum cannot become two ovum. But, for a while, a recently fertilized ovum -- called a zygote -- can split and become twin embryos. Thus a zygote is considered to be alive. If it contains human DNA then it is, by definition, a form of human life.

However, since the author of the draft order refers to a zygote meriting "protection" then the wording seems to imply that a zygote is not only a human life, like an ordinary skin cell or hair follicle. It is also a human person with the right to live, develop into a newborm, and not be aborted.

No concensus exists about when, during gestation, a human life becomes a human person. Many pro-lifers and this draft executive order imply that it happens sometime during the process of conception. Some pro-choicers suggest that when the developing fetal brain's higher functions first become active at about 22 weeks gestation, then the fetus first becomes sentient, and aware, to some degree, of its environment. Traditional Jewish belief states that human life becomes a fully human person during childbirth. Some aborigional groups say that it happens after birth when the newborn is given a name in a group naming ritual. There are many other beliefs.

Most of the pro-life/pro-choice conflict about abortion access revolves about this lack of concensus about when human life becomes a human person.

End webmaster's comment.

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Remarks about the draft Executive Order:

  • Marty Lederman, is a professor at Georgetown University Law Center and an expert on church-state separation and religious freedom matters. He said.

    " This executive order would appear to require [government] agencies to provide extensive exemptions from a staggering number of federal laws -- without regard to whether such laws substantially burden religious exercise. ..."

    "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. ... [It would be] astonishing if the Office of Legal Counsel certifies the legality of this blunderbuss order." 2

  • Ira Lupu is a professor emeritus at the George Washington University Law School. He said that the executive order:

    "... is very sweeping. It raises a big question about whether the Constitution or the [federal] RFRA [Religious Freedom Restoration Act] authorizes the president to grant religious freedom in such a broad way." 2

Lupu noted that the draft order privileges a certain set of beliefs about sexual orientation and gender identity that are held by most conservative Catholics and evangelical Christians. He believes that this goes beyond:

"... “what RFRA might authorize." 2

The executive order may violate the Establishment Clause of the first Amendment to the U.S. Constitution because it supports some faith groups more than others.

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Lupu gave one possible result of the draft executive order. It

"... might invite federal employees [at the Social Security Administration or Veterans Administration, etc] to refuse on religious grounds to process applications or respond to questions from those whose benefits depend on same sex marriages. ... [If other employees do not] fill the gap [it could] lead to a situation where marriage equality was being de facto undermined by federal employees, especially in religiously conservative communities." 2

That could violate Supreme Court rulings -- most notably that in Obergefill v. Hodges in mid 2015. It stated that same-sex couples have the right to marry if they meet the same requirements in terms of age and genetic distance required for marriage in state law. The ruling is effective throughout the U.S. and in four out of five U.S. territories.

  • Jenny Pizer, senior counsel and law and policy director for Lambda Legal, said that the draft order would appear to violate the Establishment Clause of the First Amendmenet of the U.S. Constitution by listing a:

    "... particular set of religious beliefs and giving special government protection to people who hold those beliefs, as opposed to different beliefs."

Section 4 of the order outlines "Specific Agency Responsibilities." It requires HHS (Health and Human Services) to exempt any person or organization with religious objections from complying with the federal Affordable Care Act's( a.k.a. Obamacare) preventative-care mandate which includes birth control coverage. It also requires HHS to make certain that a person who obtains insurance on a health-care exchange be able to obtain a plan that does not cover abortions and does not "subsidize plans that do provide such coverage."

It prohibits HHS from taking any action against federally funded adoption, foster, family support, or other child-welfare organizations that deny services to potential customers because of "a conflict with the organization's religious beliefs." This would guarantee protection for many agencies that have refused on religious grounds to provide adoption services to same-sex couples.

Pizer asserted that conservative Christians and their groups:

"... would say that this is a nondiscrimination [executive] order. We disagree. We would say being denied the ability to discriminate against others is not discrimination against you."

A photograph of the draft version of early draft of the executive order and the full text can be read on The Nation web site. 2

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2017-MAY-04: The final text of the executive order as signed:

"By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to guide the executive branch in formulating and implementing policies with implications for the religious liberty of persons and organizations in America, and to further compliance with the Constitution and with applicable statutes and Presidential Directives, it is hereby ordered as follows:

Section 1.  Policy.  It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.  The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government.  For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans' first freedom.  Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.  The executive branch will honor and enforce those protections.

Sec. 2.  Respecting Religious and Political Speech.  All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.  In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.  As used in this section, the term "adverse action" means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.

Sec. 3.  Conscience Protections with Respect to Preventive-Care Mandate.  The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.

Sec. 4.  Religious Liberty Guidance.  In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.

Sec. 5.  Severability.  If any provision of this order, or the application of any provision to any individual or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other individuals or circumstances shall not be affected thereby.   

Sec. 6.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or 

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person." 2

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star symbol A major change in the Executive Order:

Section 4, Clause (e)(2) in the draft executive order that was leaked to the press in February, has been deleted! It protected a group's' religious freedom to discriminate against others if it acts:

"... (or declines to act) in accordance with the belief that marriage is or should be recognized as [only] 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." [Punctuation slightly modified from the original for clarity.] (Emphasis by us). 4

By eliminating this clause from the Order, the remaining clauses now only protect freedom of religious speech. It no longer protects acts of discrimination against others based on religious beliefs. However, it does continue to allow religious individuals and groups to freely express beliefs that denigrate others. For example conservative religious groups can continue to say, with impunity, that people choose their sexual orientation; they can change their orientation with some effort; that same-gender sexual activity is not found in nature, etc. even though these beliefs have been disproven by researchers. Similarly they can teach that transgender individuals are merely gender confused, that their gender identity can be restored to their birth-identified gender through therapy, that parents cause their children to adopt a different gender identity, etc.

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This topic continues in the next essay

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Related essays on this web site that you might find interesting:

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Free image downloaded from Stock Free Images.
  2. Sarah Posener, "Leaked Draft of Trump’s Religious Freedom Order Reveals Sweeping Plans to Legalize Discrimination," The Nation, at: https://www.thenation.com/

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Copyright © 2017 by Ontario Consultants on Religious Tolerance
Originally posted on: 2017-MAY-04
Latest update: 2017-MAY-09
Author:
B.A. Robinson
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