Attorney General Jeff Sessions instructed federal agencies and attorneys on Friday to protect religious liberty in a broad, yet vague, guidance memo that critics fear could give people of faith — including government workers and contractors — a loophole to ignore federal bans on discrimination against women and LGBT people.
The guidance says the government cannot unduly burden people or certain businesses from practicing their faith, noting, “The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.”
The policy does not create new law, but rather interprets how the government should construe the Constitution and existing federal law. It comes on the heels of the Justice Department weighing in on a religious liberty case, in which lawyers under Sessions argued in a brief to the US Supreme Court that a Christian baker had a First Amendment right to deny a gay couple a cake for their wedding.
The guidance memo, which avoided mentioning pending cases by name but did refer to the ongoing controversy over contraception coverage in Obamacare, directs federal agencies to observe 20 “principles of religious liberty.” Among them, it says that religious employers are entitled to hire only workers whose beliefs and conduct are “consistent with the employer's’ religious beliefs” — a directive adopted under former President George W. Bush — and that some of the legal principles extend “not just to individuals, but also to organizations, associations, and at least some for-profit corporations.”
The US Department of Health and Human Services on Friday announced new rules that will allow employers with a “moral” or “religious” objection to stop covering contraception for employees.
One portion of the guidance directs lawyers in the Justice Department to scrutinize all proposed federal regulations, saying that the department won’t concur in the issuance of any rule that conflicts with the religious guidance.The Human Rights Campaign, the country’s largest LGBT group, issued a statement calling the guidance a “sweeping license to discriminate that puts millions of LGBTQ Americans at risk.”
The group contends the policy could allow federal contractors refuse service to LGBT customers, could let workers at the IRS refuse to process paperwork for same-sex couples, and may open a door for organizations to discriminate in health care and benefits for employees. The House LGBT caucus, meanwhile, called the guidance a "clear attack on the rights of LGBT community" in a statement.The policy is the Trump administration's latest offering to religious conservatives, who reluctantly coalesced around Donald Trump’s 2016 campaign and then, after he won the election, studded his transition team with advisors. Evangelical activists have clamored for President Trump to rescind Obama-era policies against LGBT discrimination, or, failing that, let religious objectors opt out.
In developing the guidance, the Justice Department consulted with religious and political groups with a history of opposing protections for LGBT people. A Justice Department official said those groups included the Mormon Church, the Alliance Defending Freedom, and the US Conference of Catholic Bishops.
The Alliance Defending Freedom’s president, Michael Farris, praised the Trump administration for the policy, saying it “helps protect that First Amendment freedom.” He added in a statement that it “simply directs the federal government to adhere to its legal and constitutional obligation to respect existing religious freedom protections.”
The Justice Department also consulted with the the American Civil Liberties Union, which supports LGBT rights. An official said the department did not consult “specifically” with LGBT groups.
Louise Melling, deputy legal director at the American Civil Liberties Union, was still reviewing the guidance early Friday afternoon. But she told BuzzFeed News she was concerned it prioritizes employers over the individuals nondiscrimination policies are designed to protect — such as women seeking contraception coverage and LGBT workers.
“This guidance has principles that, in myriad ways, would allow religious freedom to be used to harm others,” she told BuzzFeed News, citing a provision that says harm to a third party doesn’t neutralize an entity’s religious defense. “You could imagine an employer arguing that the Religious Freedom Restoration Act allows them to not comply with a policy barring discrimination on the basis of sexual orientation and gender identity.”
Melling was also unsure if the Justice Department believes provisions about religious organizations could be extended to protect non-religious businesses.
“We have to wait and go see how they interpret it,” she added. “You can trust we will be watching it.”
“It doesn’t legalize discrimination at all," a Justice official said.
Conservatives had been particularly irritated by former President Barack Obama's 2014 executive order that banned discrimination against federal workers and contractors on the basis of sexual orientation or gender identity, and issued guidance that says Title VII of the Civil Rights Act of 1964 protects transgender workers.
A Justice Department official, asked if the new guidance would conflict with the Obama executive order, said that order remains in effect and would continue to apply to non-religious contractors. The new guidance does not legalize discrimination, the official said.
“It doesn’t legalize discrimination at all," the official told reporters Friday. "It simply articulates what existing legal protections already exist both under the Constitution and federal statutes, and already-existing executive orders and regulations in federal law.”
Trump skirted controversy around the Obama order in May, when he issued Executive Order 13798 that commanded the attorney general to interpret “religious liberty protections” for agencies.
Session followed up over the summer by announcing forthcoming guidance that would, in part, clarify the role of the Religious Freedom Restoration Act, known as RFRA, a federal law passed by Congress in 1993. RFRA says the government must have a compelling reason to burden a person’s religious exercise, and do so in the least restrictive way possible.
“If we’re going to ensure that religious liberty is adequately protected and our country remains free, then we must ensure that RFRA is followed,” Sessions said at a closed-door speech in July to the Alliance Defending Freedom, a conservative group that seeks to repeal bans on LGBT discrimination. (Sessions’ remarks were published by The Federalist, a conservative media outlet.)
It was unclear how the religious guidance issued by Sessions may apply to a particular policy, pending case, or belief — a Justice Department official said Friday the guidance doesn’t prescribe how any situation should be handled.
Other parts of the guidance are general, such as a provision that says, “A governmental action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.”
Provisions like those raise questions about the rights of federal contractors that are not explicitly religious, but run by religious owners, and hold an anti-LGBT belief.
But some ambiguity is to be expected. A highly specific policy risks being challenged for preferring one type of religious belief — for example, opposing same-sex couples marrying — over another article of faith, thereby violating the Establishment Clause of the First Amendment. A law to that effect was blocked temporarily last year in Mississippi (it was later reinstated by an appeals court).
But the lack of specificity in Sessions’ guidance could render it a limp tool for someone seeking a legal defense. Does Sessions’ guidance saying faith is protected, as a general matter, mean a federal contractor has a legal defense to fire a transgender man, or to deny birth control coverage to female employees?
Nevertheless, some religious conservatives have at times embraced ambiguity in religious freedom policies in the past, believing the scope can be litigated in court. Among the champions of this strategy has been the Alliance Defending Freedom, which has crafted several bills modeled on RFRA for state legislatures.
Since RFRA passed in Congress with bipartisan support, conservative activists have battled in court to expand its scope. Notably, in the case of Burwell v. Hobby Lobby, lawyers for the craft store persuaded the Supreme Court to rule in 2014 that RFRA gave closely held corporations an exemption from providing contraception coverage under the Affordable Care Act, based the owners’ religious objections.
The Alliance Defending Freedom has also argued RFRA and the Constitution allow people of faith to turn away customers for same-sex weddings, even in states that ban discrimination on the basis of sexual orientation.
This fall, Supreme Court will hear an Alliance Defending Freedom case on this very dispute. The justices will consider an appeal by Jack Phillips, a Colorado baker who refused a wedding cake for a gay couple. And Phillips has a powerful — and unexpected — ally in Sessions. In August, the Justice Department lawyers took the unusual move of filing an amicus brief with the Supreme Court supporting the baker’s case.
"Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights," the Justice Department lawyers, led by Acting Solicitor General Jeffrey Wall, wrote.
Justice Department also made a case for why it was weighing in for the baker, saying, “The United States has a substantial interest in the preservation of constitutional rights of free expression. It also has a substantial interest in the application of such rights in the context of the state statute here, which shares certain features with federal public accommodations laws, including Title II of the Civil Rights Act of 1964.”