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When President Obama was in office, he took executive action favoring LGBTQ rights. When President Trump took office, he approached the issue differently, with executive actions that were branded as protecting religious freedom. Now that Trump is departing, President-elect Biden can take his own approach. New laws are unlikely with a closely divided Congress, but NPR's Tom Gjelten reports there is a lot Biden can do.
TOM GJELTEN, BYLINE: At one time, divisive issues were resolved through legislation. Congress has passed both a Civil Rights Act and a Religious Freedom Restoration Act. But these days, the action is in the executive branch. President Trump, for example, has pushed a conservative understanding of religious freedom - less that it means keeping the government out of religion; more that it's the freedom to act on your religious beliefs, even if that may affect someone else's rights. And Trump has ordered federal agencies to enforce that understanding.
Roger Severino directs that effort in the Department of Health and Human Services.
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ROGER SEVERINO: Every agency has a civil rights office in the federal government. Not every agency, until now, had a religious freedom office. And now we do.
GJELTEN: Severino is speaking there on a recent video. His religious freedom office issued a rule, for example, telling service providers that if their religious beliefs conflict with a duty to accommodate LGBTQ people, they can be freed from that duty. In part, this is all a product of the culture wars.
HOLLY HOLLMAN: Health care and nondiscrimination became so partisan.
GJELTEN: Holly Hollman, the general counsel at the Baptist Joint Committee for Religious Liberty, says legislation is no longer an effective way to deal with conflicting religious freedom and anti-discrimination concerns.
HOLLMAN: We've kind of lost our shared definition and commitment to religious liberty in ways that make that harder to legislate.
GJELTEN: President Obama used executive action to push policy changes. In 2014, he ordered that federal contractors cannot discriminate against people on the basis of their sexual orientation or gender identity. Four years later, President Trump issued a new order - religious institutions can be exempt from that anti-discrimination rule. Now that order may be replaced by yet another one.
Rachel Laser is president of Americans United for Separation of Church and State.
RACHEL LASER: We would like to see the Biden administration sign an executive order to restore and protect religious freedom for all Americans and to make clear that religious freedom should operate as a shield to protect us and not as a sword to license discrimination.
GJELTEN: Some Trump orders could be easily reversed. Trump directed the government, for example, to hold back on enforcing the so-called Johnson Amendment, which said tax-exempt religious groups can't endorse candidates. Biden could instead strengthen enforcement. Other issues could be settled through the courts. There's now a lawsuit challenging a Trump rule that allows health care providers to opt out of medical procedures if those procedures violate their religious beliefs. Laser says a Biden administration could just choose not to defend the Trump rule.
LASER: It is on appeal right now, and we would expect that the Biden administration would not carry forward with any type of appeal and would sort of cut that off at the knees.
GJELTEN: But that might not necessarily be the end of it. If the Biden administration manages to undo some Trump religious freedom order, an outside group on its own could take up that cause and push it all the way to the Supreme Court.
LOUISE MELLING: The undoing will give rise to legal challenges.
GJELTEN: Louise Melling is deputy legal director for the American Civil Liberties Union.
MELLING: The court is clearly in the midst of reconceiving some of our religion statutes and the Constitution, I think.
GJELTEN: So these battles over religious freedom and nondiscrimination will continue despite a change of presidents.
Tom Gjelten, NPR News.
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