By Janita Kan
President Joe Biden’s first day in office was marked by a flurry of executive orders. Among those was an order addressing discrimination on the basis of gender identity and sexual orientation. It augurs measures that would expand transgender access in areas such as the locker room and school sports, but fails to mention protections on the grounds of religious belief.
Biden’s order earned praise from civil rights activists but for many religious liberty advocates and groups, the trajectory of the new administration’s policies are presenting concerns and questions over what they could mean for the constitutionally enshrined freedom to exercise one’s religion.
“Early indications are troubling,” professor Edward A. Morse, who is a member of the board of directors of the Thomas More Society, told The Epoch Times in an email.
“Tumultuous days lie ahead as we wait to see how quickly protections for [religious liberty] groups won by the Trump administration will be repealed and replaced by coercive measures insensitive to their concerns,” he said.
Morse, who also teaches law at Creighton University, said anticipated policies in the area of health care are likely to present “the greatest concerns.”
“Not only for health care providers with religious commitments but also for patients who desire treatment from those who share their commitments and values,” he said. “Schools, including private and religious ones, will also be within the target zone in terms of accommodations based on gender. Clashes between the coercive power of government that prefers other interest groups over the interests of religious citizens will be inevitable.”
During the last four years, former President Donald Trump advanced a variety of protections to religious individuals and faith-based organizations. His tenure came at a time when religious liberty was facing challenges on many fronts. In one example, the Obama administration was forcing religious individuals such as the Little Sisters of the Poor, a Catholic order of nuns, to provide FDA-approved contraceptives in their health insurance plans or face severe penalties.
After Trump took office, he issued the executive order “Promoting Free Speech and Religious Liberty” (pdf) directing the Department of Health and Human Services (HHS) and other agencies to protect conscience-based objections from the mandate. The Trump administration (pdf) subsequently issued several rules (pdf) to expand religious exemptions for that health provision.
This was but one of many executive actions Trump took in order to augment existing religious liberty policies and expand conscience protections.
The former president also made protecting the sanctity of life, in particular unborn children, a priority by reinstating the so-called Mexico City policy, a Reagan-era rule that prohibits the United States from providing financial support to abortion centers and programs overseas. He also directed HHS to reinterpret the rules for Title X so that it “prohibits the use of Title X funds to perform, promote, refer for, or support abortion as a method of family planning” and requires “clear financial and physical separation between Title X and non-Title X activities.”
Trump was also the first president to attend a pro-life rally.
Meanwhile, Biden and Vice President Kamala Harris have taken very different policy stances on these issues, vowing to expand access to abortion and push for LGBTQ rights. Biden also vowed to enact the Equality Act during his first 100 days as president, which prohibits “discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.”
Before the election, the Biden-Harris campaign signaled that they would push to codify the Supreme Court case Roe v. Wade, which legalized abortions in all 50 states. Biden promised to protect abortion as a “constitutional right,” and voiced his support for repealing the Hyde Amendment, which blocked federal funding from being used in abortion services.
Last week, the Biden administration announced that the president will rescind the Mexico City policy. During his campaign, the president also vowed to restore funding for Planned Parenthood.
“While campaigning, President Biden promised that his administration will seek to roll back many of the religious liberty protections the Trump administration advanced,” Mike Berry, general counsel at First Liberty Institute, told The Epoch Times via email. “We anticipate a much more hostile and intrusive government than we experienced during the past four years.”
He added that the religious community can anticipate Biden, who was President Barack Obama’s vice president, would again attempt to disregard Little Sisters’s and other groups’ beliefs on life, marriage, and human sexuality.
Matt Sharp, senior counsel and state government relations national director at the Alliance Defending Freedom (ADF), also raised concerns over Biden’s plan to restore the Obama-Biden contraception mandate that brought significant challenges to the Little Sisters.
“This mandate lost in court when the Supreme Court rightfully acknowledged that the administration was infringing on people’s freedom and beliefs. This is a settled issue and any attempt by the Biden administration to restore this mandate will force the president to litigate a battle he already lost,” Sharp told The Epoch Times via email. “Everyone should be free to live and work according to their beliefs and this administration should respect that.”
Biden’s Order on ‘Sex’ Discrimination
Biden’s recent executive order enshrines the 2020 Supreme Court ruling Bostock v. Clayton County, which found Title VII of the 1964 Civil Rights Act’s definition of sex discrimination in hiring covers sexual orientation and gender identity. The ruling is expected to have real-life consequences for many religious employers and non-profits when making hiring decisions.
The president’s order directs the heads of agencies to review “all existing orders, regulations, guidance documents, policies, programs, or other agency actions” for anything inconsistent with Title VII and to revise, rescind, or suspend any policies to ensure compliance with the prohibition of sex discrimination.
Berry noted it was “unfortunate but telling” that one of the first actions by the Biden administration could provide roadblocks for the religious community and ministries who wish to provide services to vulnerable communities.
“In Bostock, the Supreme Court indicated that religious organizations should be protected. We’ll see if the justices live up to that promise,” Berry said.
The order also earned Biden, who is a Catholic, reproof from the United States Conference of Catholic Bishops (USCCB) which released a statement characterizing the action as a “misguided approach” to address discrimination.
“[The] executive order on ‘sex’ discrimination exceeds the [Supreme] Court’s decision. It threatens to infringe the rights of people who recognize the truth of sexual difference or who uphold the institution of lifelong marriage between one man and one woman,” the statement says.
“This may manifest in mandates that, for example, erode health care conscience rights or needed and time-honored sex-specific spaces and activities. In addition, the court had taken care to note that Bostock did not address its clear implications for religious freedom. Yesterday’s executive order exercises no such caution.”
Tom Farr, president of the Religious Freedom Institute, told The Epoch Times via email that he also believes enshrining such principles in federal regulations could “impinge on the religious liberty of those individuals and institutions affirming the traditional understanding of human persons as created male and female.”
He said as the public discourse over matters of sex and gender continues to rage, the government “should not use non-discrimination rules as a means to quash dissent on these fundamental moral, anthropological, and, for many Americans, theological questions.”
The Equality Act was introduced in Congress in 2015 and seeks to make “sexual orientation” and “gender identity” protected classes under federal law. The bill seeks to amend civil rights laws such as the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, as well as several laws regarding employment.
The law would also expand the public spaces and services covered under current discrimination law to include retail stores, services such as banks and legal services, and transportation services, according to the Human Rights Campaign. The group says it would provide more explicit protections for LGBTQ individuals.
The bill passed the House in a 236-173 vote on May 17, 2019. It was referred to the Senate in that year.
The conservative Heritage Foundation argues that the bill would likely cause harm to employers and workers by threatening them with penalties if they do not conform with the new sexual norms; medical professionals if they refuse to pay for these therapies against any moral or medical objections; parents and children by attempting to normalize hormonal and surgical interventions for gender dysphoric children and forcing ideological “education” in schools; women by closing down sex-specific facilities and services and sports; and non-profits and volunteers by forcing some faith-based organizations to conform with sexual norms or shut down.
“The Equality Act would create a cause of action against any institution that rejects the government-imposed moral orthodoxy, including churches, hospitals, adoption agencies, religious orders, schools, and other nonprofits,” Farr said.
“Dissenters will be driven from public life with ruinous fines and social opprobrium. Free exercise equality will not be allowed to guard against the harms of the Equality Act because it precludes the Religious Freedom Restoration Act as a defense against adverse action based on one of its provisions.”
Sharp said the bill would threaten women who are in need of critical services, such as at the Downtown Hope Center in Anchorage, Alaska, a Christian non-profit that offers job skills training, daily meals, laundry, and clothing for homeless men and women. The center also provides a free overnight shelter for women, especially those who are escaping abusive situations and sex trafficking.
The non-profit was previously sued for discrimination after it referred a drunk and injured biological man, who identifies as a woman, to a hospital. City officials also attempted to force the shelter to open its doors to biological men at the expense of the women taking refuge in the shelter, ADF, who represented the group, said.
“These women said they would rather sleep in the Alaskan winter than in the same room as a male,” Sharp said. “ADF successfully defended Downtown Hope Center against the city government who tried to force the shelter to take in biological men despite housing women who have experienced rape, sex trafficking, and domestic violence.”
Biden’s HHS Nominee
Biden’s pick for HHS secretary, Xavier Becerra, has also drawn concern from religious liberty defenders and pro-life advocates for his hostility toward pro-life and religious causes while serving as California’s top law enforcement official and during his time in Congress.
Many advocates are also worried over Becerra’s aggressive pro-abortion stance and his previous attacks on religious freedom protections for doctors, nurses, and other health care professionals.
“Xavier Becerra is particularly concerning for his extreme positions on abortion. While a majority of Americans support at least some restrictions on abortion, Xavier Becerra has a record of expanding abortion access, challenging laws that protect women, and consistently voting against bills that would protect women and unborn children,” Sharp said.
When Becerra was serving as a U.S. House member, he voted against a bill that aims to protect minors from driving across state borders to get an abortion without parental consent. He had also voted against a law aimed at prohibiting a form of late termination of pregnancy called “partial-birth abortion.”
Becerra also voted against the Unborn Victims of Violence Act that protects unborn children by recognizing an embryo or fetus in utero as a legal victim.
“Not only has Xavier Becerra sued the Little Sisters of the Poor to coerce them to abandon their religious commitments that conflicted with Obama Administration policies concerning contraception and abortion, but he has also been a vocal and supportive ally of Planned Parenthood,” Morse said.
“He has been instrumental in focusing the state’s prosecutorial powers on members of the pro-life cause, including David Daleiden, who have shined light on the business practices of Planned Parenthood and others in the abortion industry.”
Meanwhile, Farr noted that Becerra had previously indicated a lack of respect for the freedom of religious institutions in society during his 2017 confirmation hearing in California.
“[In] regards to religious protections, the protection for religion is for the individual, and so I think it’s important to distinguish between protections that you are affording to the individual to exercise his or her religion freely, versus protections you are giving to some institution or entity who’s essentially bootstrapping the First Amendment protections on behalf of somebody else,” Becerra responded to Assemblyman James Gallagher at the time when asked about religious liberties.
Becerra also previously argued in favor of using taxpayers’ money to provide transgender individuals in North Carolina with cover for gender transitioning surgery and treatment.
Becerra’s office did not respond to The Epoch Times’ request for comment.
Although early signs indicate that there are significant threats to religious liberty under the new administration, advocates say that they will keep a close eye in order to prevent excessive or abusive actions. Many religious liberty organizations say they will take action to defend religious liberty and prevent attempts to violate First Amendment freedoms.
“The unity promised by this administration can only be accomplished when all Americans are given the freedom to live consistent with their beliefs,” Sharp said.
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