An executive order leaked to the media last week revealed plans to use the Oval Office to legalize broad discrimination against the LGBT community in the name of religion. A draft of the order, first published in The Nation, would allow “any organization, including closely held for-profit corporations” to refuse services to LGBT people, whether in housing, employment, education or healthcare. In the media uproar that followed, Donald Trump said that he would not sign the order at this time.
But the president did not rule out doing so in the future.
The document is a reminder that while Trump has claimed he won’t overturn marriage equality in the White House, he doesn’t have to repeal Obergefell v. Hodges — the Supreme Court decision that legalized same-sex marriage — to strip the rights of gay and lesbian couples. The order is specifically designed to allow anyone who has a religious objection to same-sex marriage to discriminate in the name of faith — and would prevent the government from taking action against any individual who acts on those views. This would allow full federal protections for people like Kim Davis, the Rowan County, Ky., clerk who famously refused to sign marriage licenses for legally wedded couples in 2015.
During the 2016 election, Trump flip-flopped on the subject of marriage equality numerous times. After claiming that he would appoint justices to erase the Supreme Court’s 2015 marriage ruling, the president told Lesley Stahl of 60 Minutes that he would use the bully pulpit to target the ruling. Trump, who said his personal view on same-sex marriage is “irrelevant,” claimed the case “was already settled.”
“It’s law,” the POTUS said. “It was settled in the Supreme Court. I mean it’s done.”
What makes this claim rather disingenuous is that Trump doesn’t need the court system to neuter the protections allowed by Obergefell v. Hodges, which offer the full legal rights of marriage to all couples.
Same-sex partners may get to keep their marriages under the Trump administration, but those unions will mean little if the federal government erodes the rights and benefits afforded to that status.
In essence, the leaked document is an executive version of the First Amendment Defense Act — or HR 2802 — a national version of the Religious Freedom Restoration Act laws introduced in states like Indiana and Louisiana. The bill, which is co-sponsored by Rep. Raul Labrador (R-Idaho) and Sen. Mike Lee (R-Utah), protects the moral convictions of anyone who believes “marriage is or should be recognized as the union of one man and one woman.” Under HR 2802, it would be perfectly legal for a photographer to decide not to shoot a same-sex couple’s wedding or an adoption agency to turn down that same couple’s application.
The bill — which also could be used to fire a gay employee for having a picture of his legally wedded partner on his desk, or to deny housing to a lesbian couple — will be debated by Congress later this year. On his campaign website, Trump vowed to sign it.
Trump’s Supreme Court pick, Neil Gorsuch, would appear to confirm the administration’s commitment to so-called religious liberty over the rights of same-sex couples. Gorsuch, a far-right nominee who once referred to equal marriage as part of the liberal “social agenda,” sided with Hobby Lobby in 2012 as a justice for the 10th Circuit Court of Appeals. The court ruled that the popular home goods brand could legally deny contraception provided to employees by the Affordable Care Act on the basis of faith. The Supreme Court later would vote in kind.
It remains to be seen how a SCOTUS with Gorsuch on the bench would rule if many of the central tenets of marriage equality — the equal protection of same-sex couples under the law — are disputed by religious liberty advocates.
The impending challenges to same-sex marriage, though, may take place sooner rather than later. The Texas Supreme Court will hear oral arguments this year on a case out of Houston, a trial that will decide whether same-sex couples in the Lone Star State are entitled to the same marriage benefits as heterosexual couples. Although the court passed on it in September, the case has been a favorite of Lt. Gov. Dan Patrick, who repeatedly lobbied for the judges to reconsider hearing it. Patrick, who famously suggested that the LGBT victims of the Pulse massacre deserved to be murdered, served as Trump’s campaign chairman in Texas.
Justice John Devine, the most far-right member of the Texas Supreme Court, already has stated his opposition to providing spousal benefits to same-sex couples, which he believes are not guaranteed under existing law. “Marriage is a fundamental right,” wrote Devine in September, when the court voted 8-1 not to try the case. “Spousal benefits are not.”
That case will be heard in March, and it’s just one of numerous battles LGBT advocates will fight this year in order to protect recent gains in civil rights. 2016 was the first full legislative session following the Obergefell v. Hodges ruling, which fanned the flames of anti-LGBT hate across the U.S. Over 200 bills targeting the rights of the community were heard by state legislatures last year, a figure that more than doubled over the prior year. A majority of these cases were over the very religious objections that will take center stage this year.
The LGBT community would appear to have won an important victory with Trump’s momentary decision to put his executive order on hold — after many claimed it was already a done deal. But be warned: The war against same-sex marriage is just getting started.
Nico Lang is co-editor of the Boys anthology series. You can read his work in Rolling Stone, Salon and the Onion A.V. Club. Find him on Twitter @nico_lang.