The Likely Unintended Consequence of President Trump’s Religious Freedom Executive Order

President Trump has not wasted any time signing Executive Orders that push forward his agenda despite congressional opposition. Notably, the President signed thirty-two (32) executive orders during his first 100 days in office. One such executive order of note for employers is the Presidential Executive Order Promoting Free Speech and Religious Liberty signed May 4, 2017.

Under this Executive Order, President Trump:

1. Reinforced the Executive Branch’s commitment to enforcing the federal law’s protections of religious freedoms and reassured Americans that the Federal Government would not interfere with their religious freedom or that of their organizations to exercise religion and participate fully in civic life;
2. Instructed the Department of the Treasury not to take any adverse action against any individual, house of worship, or other religious organization for speaking or having spoken about moral or political issues from a religious perspective. As used here, “adverse action” includes making unavailable or denying any tax deduction, exemption, credit or benefit;
3. Advised the Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services to consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under the Affordable Care Act (which presently still requires coverage for contraceptive services and counseling); and
4. Ordered the Attorney General to issue guidance interpreting religious liberty protections under federal law.

Notwithstanding its vague wording and the lack of clear guidance, the President’s Executive Order has the following immediate consequences:

1. Relaxes political restrictions on religious groups of all denominations and
2. Weakens the 1954 Johnson Amendment, which requires all Section 501(c)(3) organizations, both religious and secular, to refrain from endorsing a political candidate for office or face losing their tax exempt status.

At present, it remains unclear what effect, if any, the President’s Executive Order will have on employers. Even so, we can safely assume that federal officials and executive agencies will ignore its language or Attorney General Sessions will issue guidance that unequivocally protects people of faith.

If this latter course is taken, then we can expect the unintended consequence of President Trump’s Executive Order to be an uptick in lawsuits alleging religious discrimination, harassment, and retaliation. This aftermath will presumably flow from Attorney General Jeff Sessions’ unfettered discretion to “interpret religious liberty protections under federal law.” If one were to take his voting record as a senator as an indicator, he may well empower employers to take whatever measures they deem appropriate to run their businesses in accordance with the tenets of their faith. The result of such directives will be that certain groups of people, for example the LGBT and Muslim communities, will feel marginalized and disenfranchised, and will likely file lawsuits to protect their rights.

Consequently, employers should pay close attention to how the Administration enforces the Executive Order; be on the look-out for any guidelines or regulations interpreting the Order; review current policies, practices and complaint procedures to maintain compliance with federal law, precedent, and mandates; and consult with legal counsel to identify any additional affirmative steps you can take to protect your business from future lawsuits alleging claims of religious discrimination, harassment and retaliation. We will keep you apprised of any developments relating to this Executive Order.