Biased By Design

Photo by Piret Ilver on Unsplash

In the individual executive action documents, the "Analysis" tab's goal is to succinctly communicate the speficics of the action, with some additional focus on a high-level view of potential negative outcomes. As such, I try not to lean to heavily on hypotheticals, especially since it doesn't seem to take long for there to be demonstrable disastrous consequences from them.

However, stories tend to work better at helping us absorb a given topic than mere factual presentation — and that is one reason I included a blog section in the revamped 47 Watch site. Time-permitting (I truly hope the pace of executive actions slows down a bit), I will be adding more posts like this one and yesterday's, where I have more spacce to walk through a scenario or two, to help demonstrate just how off-the-rails things could get.

With that in mind, let's look at two scenarios for Executive Order 14202 of February 6, 2025: "Eradicating Anti-Christian Bias".

Scenario 1: College Campus Religious Groups

For the first one, we'll place ourselves into a public university setting.

Let's say an institution has a non-discrimination policy requiring all student organizations to allow any student to join and hold leadership positions, regardless of their beliefs. A Christian student group argues this policy shows "anti-Christian bias" and files a complaint with the appointed Task Force. The university counters that the policy applies equally to all religious and non-religious groups to ensure equal access to university resources and prevent discrimination.

The Task Force determines the university's policy is "anti-Christian" and recommends withholding federal funding unless the university creates an exemption specifically for Christian groups. This effectively creates a two-tier system where Christian groups can exclude others, while other religious groups (Jewish, Muslim, Hindu, etc.) must still follow the non-discrimination policy. This could lead to:

I expect this hypothetical scenario to be one of the first practical ones the Task Force deals with.

Let's move from the halls of academia to the streets of rural America.

Scenario 2: Healthcare Provider Protections

Suppose a rural hospital receives federal funding and employs medical staff of various faiths. A Christian nurse claims it's against their religious beliefs to assist with hormone therapy for transgender patients and files a complaint with the Task Force when required to do so as part of their job duties. The hospital argues they need all staff to provide standard medical care to all patients to ensure adequate coverage and equal treatment.

The Task Force determines this is "anti-Christian bias" and mandates that the hospital must allow Christian employees to refuse any services they object to, without providing similar accommodations for other faiths. This could result in:

Both scenarios highlight how the broad authority and singular religious focus of the Task Force could create situations where protecting one group's religious expression may come at the cost of others' rights and equal treatment under the law.

Cascading Civil Consequences

Looking at Section 6(c) of the executive order, it explicitly states:

"This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."

This means the executive order itself doesn't create a new private right of action for civil lawsuits. However, the order could still impact civil litigation in several indirect ways:

  1. Task Force findings could be used as supporting evidence in existing types of religious discrimination lawsuits under:

  2. The Task Force's recommendations could lead to new agency rules or policies that create enforceable rights that could then be the basis for lawsuits

  3. If agencies change their enforcement priorities based on Task Force recommendations, this could affect how existing discrimination claims are handled

  4. Organizations accused of "anti-Christian bias" might face increased pressure to settle lawsuits rather than risk being identified in Task Force reports

  5. The Task Force's work could influence how courts interpret "religious discrimination" in future cases, potentially expanding what counts as discriminatory

So while the EO doesn't directly create new grounds for lawsuits, it could significantly shape the landscape of religious liberty litigation by influencing how existing laws are interpreted and enforced.

FIN

Executive Order 14202 represents more than just the creation of a task force — it's a potential reshaping of how religious liberty is interpreted and enforced in America. While ostensibly designed to protect against discrimination, its singular focus on Christian bias could transform routine policy disagreements into religious liberty violations, pressure institutions to create preferential systems, and fundamentally alter the delicate balance between religious freedom and equal protection under law. As the Task Force begins its work, the real test will be whether it can address legitimate concerns about religious discrimination without creating new forms of inequality in the process. Given the order's structure and scope, that balance may prove impossible to achieve.