President Trump would be ill-advised to sign a proposed executive order that exempts religious organizations that provide federally funded services from nondiscrimination provisions.
The exemption is supported by, among others, socially conservative organizations such as the Family Research Council and the Family Leader. Tony Perkins, president of the Family Research Council, has said of the president and the exemption, "He gets it. They will have to fix it and they will. I am confident they will."
With the reported support of the president's son-in-law and daughter - Jared Kushner and Ivanka Trump - the White House announced that the president will maintain the Obama administration executive order that requires federal contractors to provide sexual-orientation and gender-identity nondiscrimination protections.
To carve out a religious exemption based on beliefs opens a barn door for government-sanctioned discrimination. Our Constitution provides for separation of church and state. Without government interference, churches determine theology, membership policy, and rules. However, once a religious organization voluntarily applies for and receives federal funds, it is subject to the Constitution. Those religious institutions cannot exempt classes of citizens from the benefits of federal programs.
As an example of the constitutional quagmire this exemption would create, a church that believes that women are inferior to men could exempt women from some or all federally funded services. The same would be true for denominations that believe that only they are true believers, thus they could deny federally funded services to Jews, Muslims, Catholics, and others. A white supremacist church could withhold services to African Americans. For churches wishing to uphold the Ten Commandments, adulterers, violators of the Sabbath, and those who dishonor their parents, among others, could be excluded from federally funded benefits.
For the LGBT community, the impact of such an exemption would be significant. According to the Williams Institute at the UCLA School of Law, there are about 10 million LGBT adults in the United States with more than 500,000 married same-sex couples and 1.4 million transgender Americans. An estimated 25,000 adopted and foster children are being raised by same-sex couples.
These Americans would be subject to the beliefs of religious organizations that provide federally funded adoption, foster care, hospital, health care and job training, among other important services.
In 1996, Congress enacted the Defense of Marriage Act, which legislated that none of the 1,137 federal marital benefits could be provided to same-sex married couples. In the majority opinion in Windsor v. U.S. (2013), Justice Anthony Kennedy wrote that it is unconstitutional to deny federal marital benefits to same-sex married Americans.
The proposed executive order would further divide a fractured nation and ultimately be overturned as contrary to our Constitution with its guarantees of due process and equal protection.