Hit & Run

A Wayward Order on Religious Freedom and LGBT Issues Makes for Confusing Coverage and Activism

The challenge of reporting and monitoring a very leaky Trump administration.

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Trump protests
Erik Mcgregor/ZUMA Press/Newscom

Earlier in the week, the White House put out a statement that President Donald Trump is going to maintain President Barack Obama's executive order prohibiting federal agencies and federal contractors from discriminating against gay and transgender employees. So why are some people afraid this is just a big smoke screen?

People might be a little confused at news reports that there's an executive order floating around the White House that does nearly the opposite of what they said they were doing—an order that blows big holes in discrimination policies in order to protect religious freedom. Prior to the White House's announcement on Tuesday that it would be maintaining the order, some media outlets had gotten their hands on something titled "Executive Order—Establishing a Government-Wide Initiative to Respect Religious Freedom."

Even after the White House announcement, civil liberties and LGBT groups expressed concerns about the possibility that despite what Trump declared, something was coming down the line that was going to harm their interests. Representatives of the American Civil Liberties Union, the Human Rights Campaign, the National Association for the Advancement of Colored People (NAACP) and others even had a media teleconference Wednesday to express concerns about the contents of this semi-mysterious order.

Wednesday evening The Nation finally published the executive order that had been circulated within the beltway, along with some analysis by legal and civil rights experts. It's a four-page, broadly-written, and pretty complicated order, both in what it attempts to accomplish and what its hidden consequences may be.

There are parts of the executive order fans of religious freedom and freedom of association would support—it spells out that religious organizations (and individuals) cannot be forced comply with mandates to fund birth control or abortions, for example. But it also has some deep constitutional and rule-of-law issues. The order establishes that federal employees (and contractors) must be "reasonably accommodated" for acting or refusing to act in accordance to a set of beliefs outlined within the order. The very particular beliefs protected: Marriage should be reserved to heterosexual couples; biological sex is immutable (in other words, transgenderism isn't real); and life begins at birth conception and abortion is bad.

This whole part of the order, then, establishes a particular set of beliefs that are protected by government order. It's not a "religious freedom" order at all. It's saying that the government will recognize and protect a particular set of religious beliefs, which is a violation of the Establishment Clause. It literally establishes a set of religious beliefs the government will give special preference to. Mississippi passed a law with similar carveouts last year. Its implementation has been blocked by a federal judge, for now.

So after all that explanation, what is the real story here? Is this order legitimate? Is Trump going to sign it? The answers so far are that yes, the executive order appears to be legitimate and was circulating within federal agencies, but no, the Trump administration is not considering it. At least for now. A White House official told ABC News Trump has no plans to "sign anything at this time." The vague possibility hangs in the air, and so apparently gay and civil rights groups are continuing activism against an the executive order anyway and treating it though it's a Sword of Damocles about to fall at any moment.

If these opening weeks of the Trump administration are an indicator, we are going to see a very, very leaky government. In most ways, this is great. It's awesome. Trump certainly doesn't appear to be a fan of transparency (at least not when it's about him, anyway). But internal resistance and conflict between parts of his administration is going to result in information about its operations and planning to make it out into the wild for the public to evaluate and even push back against at a point where it's still possible to influence the outcome.

It comes with one big challenge though, and that's trying to discern what is and isn't real and what's just somebody's agenda. This is not a new challenge. Agenda-driven political leaks have been around forever. But these leaks have ramped up, big-league, and "media literacy" in this era is going to involve trying to navigate this nebulous space between what is being discussed, what is actually being considered, and what somebody with access simply wishes were on the agenda.

Adding to the challenge is the simple truth that under Trump—a man who will say literally anything being advised by the deliberately outrageous Steve Bannon—it's impossible to look at any report coming out of the White House and say, "That doesn't seem likely." Did Trump threaten to send the military into Mexico to ramp up the drug war? That was the story last night, then for a while it seemed like it wasn't true, and then ultimately it appears as though he said it, but he was kidding. Any of those three possibilities is fully believable.

The rush to get for the media to get out information combined with an administration that appears as unpredictable as critics feared is leading to confusing and contradictory reporting. This will obviously help feed Trump and Trump supporters' tendency to blame the media and scream "fake news" at anything that makes them look bad. Though note they avoided doing so in the example of the executive order we're talking about.