Attorney General Jeff Sessions faced a question Wednesday that’s been swirling in plain sight in the two weeks since he released a memo on Federal Law Protections for Religious Liberty: Does the new Trump administration policy allow federal employees and federal contractors to discriminate against LGBT people? Asked the question by a Democrat during a five-hour Senate hearing, Sessions ultimately punted — saying he’d have to answer later in writing.
The awkward exchange began when Sen. Dick Durbin of Illinois brought up Sessions’ Oct. 6 guidance memo, saying, “Under the guidance you released to all executive departments on religious liberty, let me ask you this question: Could a Social Security Administration employee refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse?”
Sessions froze for four seconds before replying, “That is something I have never thought would arise, but I would have to give you a written answer to that, if you don't mind.”
Durbin followed up: Would the guidance permit a federal contractor to “refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts?”
“I'm not sure that is covered by it, but I will look,” Sessions said.
Here's the exchange.
The questions were hardly out of left field — or unfamiliar to the Justice Department.
Progressive groups and Democratic lawmakers have warned for months that the long-rumored religious freedom policy could enable this exact sort of anti-LGBT discrimination.
The Human Rights Campaign wrote in a press release on Oct. 6 that “a Social Security Administration employee could refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse.”
Justice Department officials were also familiar with those questions. At a briefing on the policy on Oct. 6, a reporter asked the officials whether the guidance allows a Social Security Administration worker to refuse to handle paperwork for gay citizen. An official, who asked not to be named, responded that the guidance did not take a position on that specific scenario, but provided "legal principles and rules" that could be relevant in analyzing that type of situation going forward.
The official said that as a general matter, the guidance “doesn’t legalize discrimination at all.”
Sessions’ policy, which he sent to agency heads and US Attorneys this month, does not create new law, but rather interprets how the government should construe the Constitution and existing federal law.
Sessions said that "wherever possible, a person should be allowed to freely exercise their religion."
When he was pressed by senators Wednesday, Sessions only described what the guidance allows in broad strokes.
“I would say wherever possible a person should be allowed to freely exercise their religion and not to carry out activities that further something they think is a contrary to their faith,” Sessions said. “But at the same time, if you participate in commercial exchanges, you have limits on what you can do under those laws — public accommodation type laws. And so the balance needs to be properly struck, and I think we have. Those issues were discussed and we wrestled with this policy.”
And yet Session recently revealed what striking a balance looks like in at least one scenario. The Justice Department injected itself into a case before the Supreme Court to support a Christian baker in Colorado who had refused service to a same-sex couple seeking a custom cake. Sessions’ lawyers argued in an amicus brief the baker has a First Amendment right to do so — despite a state law banning LGBT discrimination in places of public accommodation.
“People are discriminating in the name of their own personal religious liberty. It is a real challenge for us to reconcile those,” Durbin told Sessions on Wednesday. “This is a challenging issue, when you have said, and I believe you, that you do not want to discriminate.”
Justice Department officials declined to comment to BuzzFeed News on Wednesday about how the guidance applied in the scenarios raised by Durbin and when Sessions would answer them, referring back to the remarks from DOJ officials on Oct. 6.
For now, it’s unclear if Sessions believes federal contractors who maintain a place of public accommodation can turn away customers — as the Christian baker did — particularly given a 2014 executive order by former President Obama that bans LGBT discrimination by federal contractors. Nor is it clear if Sessions believes federal workers can refuse a service to a gay citizen.
“We will send you a list and ask for your response to those questions,” said Durbin.
Zoe Tillman contributed to this report.