Constitutionality of leaked executive order on religious freedom called into question

Rabbi David Saperstein, right, former U.S. religious freedom ambassador, testifies in Washington, D.C., on Feb. 16, 2017. RNS photo by Adelle M. Banks

WASHINGTON (RNS) The former U.S. religious freedom ambassador told a congressional subcommittee that leaked language of a proposed presidential executive order on religious liberty could cause “constitutional problems.”

“I think it raises very serious equal protection issues,” said Rabbi David Saperstein, who recently ended his tenure at the U.S. State Department.

According to The Nation, a leaked draft of a proposed executive order titled “Establishing a Government-Wide Initiative to Respect Religious Freedom” shows that on issues such as same-sex marriage, abortion, gender identity and premarital sex, the Trump administration would allow exemptions for people with religious objections that are so broad it would “legalize discrimination.”

The language in that document says, “Americans and their religious organizations will not be coerced by the Federal Government into participating in activities that violate their conscience.”

Answering a question from Rep. Jerry Nadler, D-N.Y., at a hearing Thursday (Feb. 16), Saperstein said he was concerned the order could give government contractors discretion to refuse services based on their religious beliefs.

“I think it raises significant constitutional problems,” Saperstein told members of a subcommittee of the House Judiciary Committee.

Nadler, who along with Saperstein has been instrumental in the passage of religious liberty legislation, said laws such as the Religious Freedom Restoration Act are designed to shield people from government imposition of religious beliefs.

“However, it should not be used as a sword to enable you to impose your religious belief on someone else,” said the congressman, who raised examples of interracial or same-sex couples being refused at a restaurant by proprietors with religious objections.

Kim Colby, director of the Christian Legal Society’s Center for Law and Religious Freedom, said after the hearing that Nadler’s examples are “misguided” because civil rights laws regarding restaurant discrimination were set more than 50 years ago.

“An executive order can’t change a law that Congress has passed,” said Colby, who also testified before the Subcommittee on the Constitution and Civil Justice. “So a lot of those hypotheticals just can’t happen.”

The U.S. Conference of Catholic Bishops sent a letter to President Trump urging him to sign the draft executive order, calling it a “positive step toward allowing all Americans to be able to practice their faith without severe penalties from the federal government.”

About the author

Adelle M. Banks

Adelle M. Banks, production editor and a national reporter, joined RNS in 1995. An award-winning journalist, she previously was the religion reporter at the Orlando Sentinel and a reporter at The Providence Journal and newspapers in the upstate New York communities of Syracuse and Binghamton.


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  • The language seems straightforward enough to me — people, either singly or in groups, will be free to exercise their religion. After all, the 1st Amendment doesn’t say that people are free to exercise their religion so long as they don’t inconvenience anyone.

  • Remind me to use that line after committing human sacrifice. See how that works out.

    We both know the purpose of the phrasing was to allow contractors to discriminate using religious excuses.

  • Right, because refusing to include birth control in your employee medical plan is the equivalent of human sacrifice.

  • Yep. Especially since the person on the receiving end of such treatment is harmed by the religious beliefs of the one imposing it upon them. Your right to force me to abide by your religious beliefs is the same for human sacrifice and discrimination.

    As for birth control, employees can opt to get their own insurance plans independent of the employer that have contraception. So its a dead issue.

  • Since when is the product or service I sell in the open marketplace an expression of my religious belief? I’d be more sympathetic if such sensitivity had been expressed for any other sutuation othet than same sex marriage, which is the core issue here.

  • Of course it’s unconstitutional. It violates the establishment clause. It takes the religious belief of a subset of christianity and makes it into law.

  • The arguments I am reading are expressing that my spiritual convictions are not as important as someone else’s. Yes, if I sell flowers I need to sell them to anyone and everyone. But what about my ability to arrange them? My innate ability is regulated as well? The issue isn’t human nor chicken sacrifice since they are against the law anyway. What if I express my religious opposition to gay marriage, but arrange the flowers anyway. If the buyer doesn’t think I did my best I can be prosecuted for not trying hard enough.

    I have been a long time opponent to trying to legislate morality. Yet now we are stepping into the age of legislating the use of a person’s talents. If I am a good floral arranger but elect to serve ice cream si I don’t have to use my talents for same sex weddings, under present court orders and discrimination law, I could be prosecuted for withholding my talent as floral arranger because it deprives the LGBT community.

    Where does it end? Well, logically, by outlawing my faith, because IT is what causes the offense.

  • How about being more honest here. The issue is whether your religious convictions and power relationship with others allows you to impose your views on people or attack their rights.

    Your religion is not grounds for attacking access of open commerce and government services to others. It does not grant you an exception to anti discrimination laws. If your flower shop, bakery or whatever sells it’s wares to the general public, then you must serve the general public. If you want to be more selective, then engage in more closed forms of commerce.

    It’s amazing how you can cough up a libertarian argument for attacking civil liberties of others.

    Where does it end? When people don’t discriminate against customers and can act civil towards them. When people can shop without having to navigate the personal prejudices of others.

    Your religious convictions to demean and maliciously attack others aren’t worth squat to society. They do not deserve power of law..

  • Your “argument” seems to follow a path that ends with accusations and name calling. Why is that? Did I use my beliefs to demean or maliciously attack someone? Who? Exactly who? Name someone. Since you are so adamant about preservation of perceived rights here is a stated right… I have a right to face my accuser. Who has accused me of demeaning them or maliciously tacking Them?

  • Because you are framing the issue in a less than straightforward and honest manner.

    I did not accuse you of anything. Merely using “you” as someone who puts ideas like yours in practice or advocates for them. Maybe you took it too personally. But I guess tone trolling is far easier than addressing what was said.

    If one believes their religious convictions entitle them to deny goods and services to people in open commerce, they are not advocating religious freedom. Merely privilege and codifying bigotry under color of law. These are not ideas worth taking seriously in a society which values civil liberties.

  • The Establishment Clause was adopted to keep the GOVERNMENT out of the CHURCH, not vice versa. Anyone who reads the Federalist Papers, the Declaration of Independence, and the Constitution can see that. You can’t keep religious beliefs out of the government without keeping believers (in any religion including atheism) out of the government. And that’s not possible.

  • Let me help you out. The Bible, the book upon which Christians are to base their lives, says to do everything as if you are doing it for Christ, and they cannot follow Christ without obeying Him. Christ was always quoting from the Torah, and from the Prophets, validating them. And the Torah is very clear on the nature of marriage and of homosexual practice. (Note that I did not say homosexuals; that was on purpose). Christians believe that their talents and abilities are to be used for God’s glory. According to His Word, the Bible, God is against all sexual immorality, including homosexual practice and adultery. So A Christian should not use those God-given talents and abilities to support what God calls abhorrent. In fact, a Christian should not help with a “divorce party,” either.

    I know that’s a lot, but I hope it helps.

  • Spuddie, I probably did take it too personally. I often post my thoughts probably in the extreme, and often get very, um, less than cordial, replies. Again last night my wife and I discussed the issue, and I am very much troubled with it. On one hand I am a zealot when it comes to religious freedom, and on the other on equality. And my entire career was spent working with and selling products to a wide spectrum of personal, political and religious people, and the only time I ever discriminated against anyone was when a potential customer was either dishonest or a complete jerk. And in those cases I never asked about anything they believed in, stood for or advocated against. Excuse my language here, but I simply chose not to go out of my way to make a sale to a prick. But this florist lady and her customer had long standing business dealings. She knew he was gay, and he knew she was a devout Christian. And while they didn’t socialize outside of business, they considered one another friends. My inclination is to think… and this is speculation only, not based on facts… that she was chosen to become an example to all. I think he knew she wouldn’t want to use her talents to do a samesex wedding arrangement, but requested it anyway. And I think the legal people that represented him saw an opportunity.

    I am torn between which right should take precedence over the other. I see people seeking to take advantage of either position, and that is where the devil lies. There is no civility in any of it. However well meaning either happens to be, there are ruthless people who look for openings to impose their own agenda upon others.

  • My position on this is pretty straightforward, if the actions are no different from any other form of discrimination in form or actions, wrapping it up in religion isn’t going to make it OK.

    Your right to religious expression ends when you are using it as a pretext to harm others. Much like your your right to free speech ends with fraud, defamation and inciting a riot.

    What the baker and florist did is literally no different that telling a customer “we don’t serve (insert bigoted slur) here”.

    We already had an America where people had to navigate through personal prejudices of those running public accommodations and government services. It was called Jim Crow. It was lousy. We don’t need it in a new form.