The Religious Liberty Draft Executive Order and the Risks to Children

Updated:
Posted in: Constitutional Law

Much has been written about the draft religious liberty executive order that was leaked. The order is so transparently anti-LGBTQ, anti-same sex marriage, and anti-abortion, it is easy to assume these familiar issues exhaust its reach. But its reach, just like the scope of the Religious Freedom Restoration Act (RFRA), goes well beyond anything the religious right that obviously drafted this order either understands or, I hope, intends.

Although these hot-button issues are front and center in its crafting, historic timing, and language, its coverage is not limited to specific beliefs as it applies to “all aspects of religious observance and practice . . . whether or not the act is required or compelled by, or central to, a system of religious belief.” In case a court were to misconstrue this emphatically-worded set of statutory rights otherwise, it also requires that it “shall be construed broadly . . . [and] to the greatest extent practicable and permitted by law.”

The order’s Pandora’s box of protections would apply against “[a]ll executive branch departments and agencies” and their “regulations, . . . actions, or . . . policies.” Who has the benefit of these unprecedented, broad rights against the federal government?

  1. “any organization, including closely held for-profit corporations . . . even if its purpose is not exclusively religious” and, therefore, it is not limited to houses of worship or nonprofits,
  2. all recipients or offerors of a federal “contract, subcontract, grant, purchase order or cooperative agreement,”
  3. “federal employees,”
  4. any organization providing “social services, education, or healthcare”
  5. anyone “seeking a job, or employing others,” [and]
  6. anyone “participating in the marketplace, the public square, or interfacing with Federal, State or local governments.”

This ocean of coverage and beneficiaries is impossible to fully process. As with RFRA, the black box of extreme religious liberty obscures its vast range as I discuss here. That is true with this draft order as well, which on its surface does not reveal how and when it would endanger children. As happens so often, this vulnerable population has been ignored and would be defenseless against the harms that will rain down on them if this were to become the law.

The federal government funds many organizations that serve children. Under this order, a hospital run by a religious organization that views LGBTQ as sinful and in need of conversion could refuse even basic care based on the sexual orientation of the parents or the child, or even impose “care” like conversion therapy as part of its religious mission. Organizations that provide food, shelter, adoption services, and child protection subsidized by the federal government could also exclude LGBTQ children from their social services. Federal employees could refuse to serve or process requests from LGBTQ individuals or couples in every arena: the processing of tax returns; determinations of disability for SSDI purposes; and passport requests, just to name a tiny number of examples from the vast system of administrative agencies. But this refusal to nurture, save, or help LGBTQ families and children is just the tip of the iceberg.

What happens when an FBI agent is assigned to investigate a child sex abuse ring in a church, and she believes that the government should not interfere with the internal workings of a church, or, what those who drafted this order would call “church autonomy?” That agent has a colorable argument for reassignment under this draft order. Must her superior question each agent individually regarding their views on church and state before attacking the pervasive child sex abuse that is now a scourge in the United States? If so, the order has just driven the government directly into the headlights of the Establishment Clause and the separation of church and state.

The child labor laws would also take a big hit if this order were the law of the land. It is less expensive and expedient to use children to work in factories, stock the shelves of megastores, pick pecans, or hand out tracts during school hours. Remember the believer need not prove the belief is central or even mandatory; only that it is related to some aspect of belief somehow and, therefore, it would not be difficult for believers to explain the need to violate the child labor laws for the faith. When the contractor, individual, or business receiving federal funds operates in any of these arenas, putting children in these illegal situations, the answer will be that the order lets them do it.

Under this language, faith-based, federally-funded addiction treatment facilities could treat teenagers addicted to heroin with prayer in lieu of clinically-proven treatment. Conservative believers who sign up to be Title IX investigators could give high schools that don’t provide equal opportunities for sports between the genders a wink and a nod. Principals of public schools could refuse to provide sex education as part of the curriculum or direct science teachers to teach creationism and gag them on evolution.

The order further applies to the entirety of the preventive-care mandate in the Affordable Care Act, not just the contraception mandate. The obvious goal is to permit conservative Christians to exclude contraception and abortion from their health plans. The order does not acknowledge, however, that it would also give religious parents an argument that they should not have to get insurance for their children and if they do, should not have to vaccinate or provide other preventive care to their infants, children, and adolescents–according to their religious lights. While there are already religious exemptions to vaccination in many states, the problem with the reduction in herd immunity does not need the federal government’s further nudge.

In response to those who would say that RFRA has not protected every single claim and therefore, some of these claims under the draft order would fail, re-read the order. RFRA afforded the most extreme religious liberty regime in United States history. This order incorporates RFRA and then orders that it be read broadly. Like RFRA, which was sold as this wholesome re-enactment of the preceding law (haha), this is another bill of goods being sold under the label “religious liberty” where even its drafters cannot fully explain its impact.

The bottom line is that this order, which is more extreme than even RFRA, puts children to known and unknown risks. I have yet to hear the persuasive argument for letting these extreme religious liberty formulae make children the martyrs of their parents or any other adult.