Legal Analysis: “Religious Freedom” Draft Executive Order a Broad License to Discriminate

Order Would Allow Individuals and Corporations to Discriminate on Virtually Any Basis, Violating U.S. and International Law


February 8, 2017, New York – Today, the Center for Constitutional Rights (CCR) released Discrimination in the Guise of Liberty, a point-by-point legal analysis of Trump’s draft executive order on “religious freedom.” CCR explains how the order would create special exemptions for individuals and most businesses to discriminate on virtually any basis and carve out sub-classes of people to exclude from basic rights protected by the U.S. Constitution and international human rights law.

“This order explicitly turns religious freedom protections from a shield to a sword,” said Center for Constitutional Rights Senior Staff Attorney Pam Spees. “It’s the latest effort by elements of the Christian right to legitimize and immunize severe discrimination in many forms under the guise of religious freedom both domestically and globally. Since Nuremberg, targeting groups for deprivation of basic, fundamental rights in a widespread or systematic manner constitutes the crime against humanity of persecution, one of the most serious violations of international law.” 

The leaked draft mirrors similar efforts by the Christian right in its targeting of LGBTQ communities and permitting companies to discriminate against people who have abortions, use contraception, or engage in sexual activity outside of marriage. The Center for Constitutional Rights’ analysis points to how the order could extend even further than that, calling it a “radical overreach of proposed religious exemptions permitting discrimination on the basis gender, gender identity, sexuality, and reproductive choices, as well as race, national origin, and religion in violation of the United States Constitution and domestic and international law.” The order is so broad, says CCR, it could be a license for individuals and businesses of all kinds to discriminate against anyone for virtually any reason, using the blanket excuse of “moral conflict” with one’s beliefs.

“This order is a veritable Christmas tree hung with ornaments from the religious right’s wish list, and represents the capture of the U.S. government by a radical religious minority,” said Center for Constitutional Rights Board Chair, Columbia Law Professor Katherine Franke. “Even if this draft order isn’t signed, they’ve shown their true hand, and we must be prepared for pieces of it to show up in other executive or legislative actions.”  

Read and download the legal analysis on the CCR website.

CCR also represents Sexual Minorities Uganda in their case against a U.S. evangelical for his role in the persecution of the LGBTI community in Uganda. See Sexual Minorities Uganda v. Scott Lively.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at


Last modified 

February 9, 2017