More and more key government policies on religious freedom and discrimination are being influenced by presidential orders, which suddenly change their content from changing administrations.
Several advocates for LGBTQ rights applauded when President Barack Obama unilaterally issued an executive order in 2014 that prohibited federal contractors from discriminating against their applicants based on their sexual orientation or gender identity.
However, four years later, the Trump administration revised the order with a unilateral move that allowed contractors faced with discrimination charges of being set free under the guise of a “religious exemption.”
Later, the Labor Department proposed a rule that gave Trump’s directive the authority to allow faith-based contractors to implement a hiring preference to applicants with specific religious beliefs, including same-sex marriage or sexual orientations.
Former Vice-President Joe Biden has promised to work on abolishing Trump’s directive and bring back Obama’s non-discriminating process.
Politicians have gone back and forth between directives due to the uncertainty of the First Amendment guarantee of religious freedom. Conservatives believe it gives people and organizations the right to act on their objections against abortion, same-sex union, or accommodation policies for people like transgenders.
However, others say the directive denies the discrimination of individuals that goes against their basic civil rights or human services due to their preferences.
Historically, similar arguments have been resolved with the use of legislation, such as the Civil Rights Act in 1964 and the Religious Freedom Restoration Act in 1993. Both laws had acquired bipartisan support; however, cooperation between the two sides has since deteriorated.
The general counsel at the Baptist Joint Committee for Religious Liberty, Holly Hollman, said, “Health care and nondiscrimination became so partisan.” He added that the shared definition of religious liberty has been lost and had become more difficult to legislate.
Experts are anxious about the potentially divided government coming into 2021, with Biden setting his presence in the White House. Coupled with a Republican-led Senate, consensus relating to religious freedom is difficult to guarantee.
A research fellow at the Heritage Foundation, Ryan Anderson, who often writes on religious freedom issues, said that the potential gridlock could cause more unilateral actions from the executive branch to be released.
After Obama barred discrimination in the hiring process in 2014, he then required schools to protect their transgender students from abuse and harassment in 2016 while simultaneously accommodating their identities within their facilities.
However, shortly after Trump’s inauguration, his administration rescinded the guidance and told school districts that state and local authorities were the ones that controlled such directives. Three months later, the Republican president issues a sweeping order that promoted free speech and religious liberty.
The order, on the other hand, was a weaker enforcement of the Johnson Amendment that barred tax-exempt religious groups from endorsing political candidates. The order also told government agencies to discuss new regulations that would address “conscience-based objections” to the provision of some health care services. It also instructed the attorney general to release guidance on what religious liberty protections require to all federal agencies.
Anderson said, “There are a variety of religious traditions that hold viewpoints on this question,” citing concerns for sexuality and marriage. He noted that religious individuals who believe the Genesis creation story would be strongly supportive that there are only male and female genders, NPR reported.
The research fellow said the Biden administration could violate those convictions and challenge citizens on how to navigate the disagreement between beliefs. If the Democratic administration does succeed in supporting conservative interpretations as well, other groups could easily go to court with similar claims.
The deputy legal director at the ACLU, Louise Melling, said the results could lead to legal challenges. She said that the court is clearly discussing their next move on religious statutes and the constitution.