1. The four-page draft order, a copy of which is currently circulating among federal staff and advocacy organizations, construes religious organizations so broadly that it covers “any organization, including closely held for-profit corporations,” and protects “religious freedom” in every walk of life: “when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.”
The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act.
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2. Language in the draft document specifically protects the tax-exempt status of any organization that “believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as 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.”
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3. It sets forth an exceptionally expansive definition of “religious exercise” that extends to “any act or refusal to act that is motivated by a sincerely held religious belief, whether or not the act is required or compelled by, or central to, a system of religious belief.”
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4. Lupu added that the language of the draft “might invite federal employees,” for example, at the Social Security Administration or Veterans Administration, “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,” he said, it could “lead to a situation where marriage equality was being de facto undermined by federal employees, especially in religiously conservative communities,” contrary to Supreme Court rulings.
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5. Section 4 of the order, “Specific Agency Responsibilities,” requires HHS to issue a rule exempting any person or organization with religious objections from complying with the ACA’s preventive-care mandate—42 U.S.C. 300gg-13(a)(4)—which includes contraceptive coverage. It requires HHS to ensure that anyone purchasing insurance on a health-care exchange have the option of purchasing a plan that neither covers abortions nor “subsidize plans that do provide such coverage.”
And it bars HHS from taking any adverse action against federally funded child-welfare organizations, including those offering adoption, foster, or family support services, that deny anyone these services “due to a conflict with the organization’s religious ---beliefs.”
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6. Section 4 also requires the Department of Justice to establish a new section or working group dedicated to protecting “religious freedom.”
