Attorney General Jeff Sessions issued extensive guidance Friday morning regarding “Protections for Religious Liberty” throughout the federal government. The document scrupulously avoids mentioning the LGBTQ community by name but it is undeniably the latest in a string of actions targeting LGBTQ rights.
Among the 20 “key principles” in Sessions’ memo are several assurances that the government will not penalize religious organizations for their religious beliefs, including their hiring practices or other aspects of their religious practice. Principle 2 states, “The free exercise of religion includes the right to act or not to act in accordance with one’s religious beliefs,” and that reference to not acting is the exact argument that has been used in countless cases where businesses and organizations have refused to serve LGBTQ people because of their religious beliefs.
Other points reinforce this. For example, Principle 6 states, “Government may not exclude religious individuals or entities based on their religion,” and Principle 20 states, “Generally, the federal government may not condition federal grants or contracts on the religious organization altering its religious character, beliefs, or activities.” The language in these principles strongly resembles language used to protect child-care and adoption agencies from losing governmental grants if they refuse to serve same-sex couples.
The guidance also protects businesses that would discriminate against same-sex couples through its interpretation of the Religious Freedom Restoration Act (RFRA). Principle 11 ensures that RFRA extends to businesses as well as individuals, consistent with the Supreme Court’s Hobby Lobby ruling. Principles 13-15 then outline how RFRA could be used to justify discrimination:
- 13. 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.
- 14. Under RFRA, any government action that would substantially burden religious freedom is held to an exceptionally demanding standard.
- 15. RFRA applies even where a religious adherent seeks an exemption from a requirement to confer benefits on third parties.
Principle 15 is a direct reference to the controversy regarding the state-level RFRA that Indiana passed — and then watered down after a massive backlash — in 2015. Previous RFRA laws referred only to protections citizens enjoy when the government was directly burdening their religious practice, but Indiana’s law was designed to offer “religious freedom” as a justification in cases between two citizens, thus protecting those who would discriminate because of their religious beliefs. Stipulating that RFRA applies to disputes related to conferring benefits to others is nothing short of the same license to discriminate from Indiana’s legislation.
The lengthy appendix of references reinforces this intention. In language borrowed almost directly from arguments the Department of Justice joined defending the bakery that refused to sell a wedding cake to a same-sex couple, Sessions explains, “A law that seeks to compel a private person’s speech or expression contrary to his or her religious beliefs implicates both the freedoms of speech and free exercise.” The DOJ argued that Jack Phillips, the baker, engages in an inherently expressive activity when he designs a cake for a customer.
Sessions later notes that interfering with a religious organization’s “associational rights” — i.e. who it deems can be members — is a particularly high standard. “The government may be able to meet that standard with respect to race discrimination, but may not be able to with respect to other forms of discrimination,” he writes, noting the Supreme Court’s decision to allow the Boy Scouts of America to refuse gay members. In the context of the other principles in the document, this suggests there could be no repercussions, for example, for religiously affiliated universities that accept federal grants but refuse to accept LGBTQ students.
In addition to Session’s primary memo, he also sent a second memo outlining implementation of the first across the federal government. This means that all agencies will effectively have to run a “religious freedom” test on all of their actions, further cementing how it will negatively impact grants and litigation, among other things.
Despite these obvious implications, a backgrounder of talking points distributed along with the memo claims, “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 or change existing federal and state protections.”
Sessions’ guidance is a follow-up to an executive order President Trump issued in May regarding “religious freedom.” That order, which was narrower than expected, focused on allowing religious organizations and leaders to engage in political speech without penalty and weakened the Obamacare contraception order. It also included, however, the vague instruction that, “In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”
Back in the early weeks of the administration, a drafted executive order leaked that would have created a religious license to discriminate for all adoption and child-care agencies and would have explicitly allowed individuals and organizations to discriminate on the basis of sexual orientation and gender identity. Though the Trump administration did not dispute the authenticity of the draft, it said it had “no plans” to take any action on it.
When news dropped that the May executive order was coming, it was initially thought that it would be the same order that leaked in February. Some conservatives were upset that it turned out to be so narrow instead, but Fox News’ Todd Starnes, a very vocal opponent of LGBTQ equality, was not at all concerned. “I spoke to a conservative leader late last night instrumental in crafting the order,” he said at the time. “He tells me this is just the first step in a multi-step process, and he tells me President Trump will protect religious freedom for all Americans.” The new guidance confirms that the narrow order would eventually lead to the broader discriminatory scope of the original leaked order.
The DOJ’s new guidance is only the latest in a litany of actions the Trump administration — and particularly Sessions’ DOJ — has taken to undermine LGBTQ equality, including:
- Reversing a policy recognizing that transgender people are protected from employment discrimination.
- Arguing in court that firing an employee for being gay was justified.
- Arguing in court that a business refusing service to a same-sex couple was justified.
- Rescinding guidance protecting transgender students and replacing it with guidance that allows schools to discriminate against them.
- Instituting a ban on transgender people serving in the military.
- Working to roll back Obamacare’s rules protecting transgender people from discrimination in health care.
- Proposing massive cuts to HIV funding.
- Trying to cut questions that would identify LGBTQ people in various data collection efforts.
- Dropping out of the lawsuit challenging North Carolina’s anti-transgender law, HB2.
This is a breaking news story and will be updated.