U.S. Attorney General Jeff Sessions on Friday issued broad guidance allowing individuals and businesses to act in the name of religious freedom — often used an exercise for anti-LGBT discrimination — without fear of government reprisal.
Sessions said in a statement his action — which consists of a memo to administrative agencies, and another memo to Justice Department attorneys — would enhance the bedrock principle in the United States of religious freedom.
“Our freedom as citizens has always been inextricably linked with our religious freedom as a people,” Sessions said. “It has protected both the freedom to worship and the freedom not to believe. Every American has a right to believe, worship, and exercise their faith. The protections for this right, enshrined in our Constitution and laws, serve to declare and protect this important part of our heritage.”
A background memo accompanying the new guidance insists the move “does not authorize anyone to discriminate on the basis of race, ethnicity, national origin, sex, sexual orientation, or gender identity in violation of federal law or change existing federal and state protections.”
But key portions of the memos should be troubling to proponents of LGBT rights. The memo to agencies allows individuals to act or abstain from action according to their religious beliefs and prohibits the government from targeting religious individuals and organizations for acting on those beliefs.
The memo asserts the 1993 Religious Freedom Restoration Act applies not just to people, but organizations and some for-profit companies. Further, the guidance says RFRA doesn’t permit the federal government to second-guess a religious belief and asserts the strict scrutiny standard under the law is “exceptionally demanding.”
In the memo to Justice Department attorneys, Sessions urged his subordinates to keep in mind the primacy of religious freedom in actions such as drafting rules within the administration.
Although the memo asserts the change won’t enable anti-LGBT discrimination under the law, that language is found no where as a limiting principle in the memos themselves. That assurance is left out in important passages asserting the primacy of religious freedom that could be construed to allow anti-LGBT discrimination.
Under the principles of the guidance, for example, a Social Security administrator charged with processing benefits applications could see an application for same-sex spousal benefits and refuse to process that application for religious reasons.
Also included in the guidance is a section asserting religious organization acting on their beliefs shouldn’t be penalized in competition for federal contracts. That could conflict with former President Obama’s 2014 executive order barring anti-LGBT discrimination in the workplace, which President Trump said he’d uphold, and green-light anti-LGBT discrimination among federal contractors in other capacities, such as the denial of services.
Rebecca Isaacs, executive director of the Equality Federation, said in a statement the religious freedom guidance is a “license to discriminate” and “an attack on the values of freedom and fairness that make this nation great.”
“It opens the door for discrimination in the workplace and public services, flying in the face of the majority of Americans of whom over 70 percent believe laws should protect LGBTQ people from discrimination,” Isaacs said.
Commending the Trump administration for the memoranda was Tony Perkins, president of the anti-LGBT Family Research Council.
“President Trump and the Department of Justice are putting federal government agencies on notice: You will not only respect the freedom of every American to believe but live according to those beliefs,” Perkins said in a statement. “This is a freedom that has been a fundamental part of our society since the beginning of our nation.”
Sessions issues the guidance as a result of an executive order Trump signed in May empowering the attorney general to issue religious freedom guidance. Although the executive order said nothing about LGBT issues, many feared handing that authority to Sessions would enable to him direct the government to discriminate against LGBT people.
Drew Hudson, a Justice Department spokesperson, echoed the sentiment the guidance doesn’t enable discrimination — anti-LGBT or otherwise — in response to a Washington Blade inquiry on how that could be the case given the language within the document.
“The guidance does not authorize anyone to discriminate on the basis of race, ethnicity, national origin, sex, sexual orientation, or gender identity in violation of federal law,” Hudson said. “The guidance also does not change existing state or federal protections for minority groups, including members of the LGBT community. The guidance explains the relevant protections for religious liberty that already exist within federal law.”
The memos are the latest in a string of actions from the Trump administration, and Sessions in particular, undermining LGBT rights. It comes one day after Sessions instructed the Justice Department to no longer interpret the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 to apply to cases of transgender discrimination.
The religious freedom guidance also comes on the same day the Trump administration rolled back a mandate under the Affordable Care Act requiring businesses to include birth control as part of insurance coverage. Both actions were the result of Trump’s executive order in May.
It remains to be seen if legal organizations will file lawsuits over the guidance for compromising the rights of LGBT people and others.
Rachel Tiven, executive director of Lambda Legal, said in a statement her organization will hold the Trump administration to its assertion the religious freedom guidance doesn’t allow anti-LGBT discrimination.
“Today’s DOJ memo is a road map for federal agencies: guiding them to discriminate against women and LGBT people,” Tiven said. “The White House says the guidance ‘does not authorize anyone to discriminate’ – and Lambda Legal will make sure it doesn’t.”