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Justice Department 'Religious Liberty' Guidance: A 'License to Discriminate'?

The new guidance outlines 20 "religious liberty" principles, but some say it could unleash discrimination "at a scale that we have never seen.”

by Julie Moreau /
An exterior view of the U.S. Department of Justice headquarters on July 25, 2017 in Washington, DC.Drew Angerer / Getty Images

Just one day after the U.S. Department of Justice (DOJ) released a memorandum excluding transgender workers from civil rights protections, Attorney General Jeff Sessions issued two more memos — both addressing the interpretation of religious liberty in federal law.

The first, titled “Federal Law Protections for Religious Liberty,” is guidance directed at “all executive departments and agencies.” The memo situates religious liberty as a “foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law.”

The document outlines 20 principles of religious liberty, asserting not only that religious liberty is a “fundamental right of paramount importance” but that “free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs,” and that this right extends to both “persons and organizations.”

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Further, the guidance includes principles such as: “Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.”

In the second memo, titled “Implementation of Memorandum on Federal Law Protections for Religious Liberty,” which is addressed to all DOJ attorneys, Sessions “direct[s] all attorneys within the Department to adhere to the interpretative guidance set forth” in the first memorandum.

Potential Impact on LGBTQ Rights

While the memos do not directly mention the the lesbian, gay, bisexual, transgender and queer community, the documents’ language resonates with cases involving LGBTQ rights that are currently being litigated.

James Esseks, director of the LGBT Project at the American Civil Liberties Union (ACLU), cited the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission case, which is headed to the Supreme Court this term, as an example. The DOJ filed an amicus brief in that case supporting the cake shop owner. In the brief, Esseks said, the DOJ argues that businesses should be allowed to discriminate “in a narrow sense” if they produce an “expressive product,” such as a wedding cake.

“But if you look at this guidance, there is nothing limited about the discrimination they want to allow,” Esseks said. “They are saying any business covered by Title VII has a right to turn people away based on the religious beliefs of the employer.”

“That is new world,” Esseks added.

Though it is ultimately up to the courts to decide the law, Esseks anticipates the DOJ will also submit a brief in the U.S. Court of Appeals for the Sixth Circuit case involving a Michigan woman fired from her job at a funeral home because she is transgender.

“I wouldn’t be surprised if the DOJ does file a brief in the future, because this guidance certainly suggests that the employer has a right under Religious Freedom Restoration Act (RFRA) to fire people from [such a] job,” he explained, adding that Sessions’ new guidance is a “radical reinterpretation of federal law.”

In terms of a potential immediate effect on the lives of LGBTQ people, Esseks noted that the DOJ oversees federal contractors, many of whom are service providers — including soup kitchens and shelters.

“This could mean that they can turn people away. They could turn gay or transgender people away,” he said. “It opens up discrimination by federal contractors and grantees at a scale that we have never seen.”

LGBTQ Advocates React

Reaction to Sessions’ guidance from LGBTQ advocates was swift and harsh.

The GLAAD, PFLAG and the National Center for Lesbian Rights were among the many LGBTQ organizations to release statements slamming the DOJ’s latest memos as a broad license to discriminate.

“This administration has the dubious distinction of making more attempts to remove existing protections from LGBTQ and other marginalized people than any in this nation’s history,” Jaime M. Grant, executive director of PFLAG, said in a statement sent to NBC News. “Freedom of religious belief — which is already protected in the U.S. constitution — does not, and should not, grant the right to take actions which undermine a person’s humanity, yet that is exactly what the 20 ‘principles’ outlined in the memo from the Department of Justice could do,”

“The DOJ is granting a broad license to discriminate that could damage the lives and livelihoods of LGBTQ people and our friends and family members,” Grant added.

In her statement slamming the DOJ’s memos, Julie Gonen, federal policy director at the National Center for Lesbian Rights (NCLR), focused on their potential health care impact this new “religious liberty” guidance could have.

“This is a shocking and unconscionable attack on essential health care for women and others. Once again, this administration is seeking to dismantle longstanding civil rights protections and to force women and LGBT people back into the dark ages,” Gonen stated.

“Undoubtedly, it will embolden those who seek to discriminate beyond the birth control context, such as employers who demand exemptions from non-discrimination protections, with serious consequences for women, religious minorities, people of color, people with disabilities, and LGBT people,” Gonen added.

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LGBTQ advocacy organization GLAAD noted that the content of the memos bear a “striking resemblance” to Indiana’s Religious Freedom Restoration Act, which then-Governor Mike Pence signed into law in 2015. GLAAD’s statement suggests Vice President Pence has become “the chief architect for this and other social issues within this administration.”

“Freedom of religion is paramount to our nation’s success, but does not give people the right to impose their beliefs on others, to harm others, or to discriminate,” Sarah Kate Ellis, president and CEO of GLAAD, stated. “Nothing could be more un-American and unholy than using religion to justify harm and discrimination to others.”

Democrats React

Those on the other side of the political aisle were also vocal about their disdain for the guidance.

Joel Kasnetz, a spokesperson for the Democratic National Committee, remarked upon the frequency with which the DOJ intervenes in issues that affect LGBTQ Americans.

“If Jeff Sessions is attacking LGBTQ people, it must be a day that ends in a ‘y.’ Religious freedom is a fundamental right, but the attorney general’s directive is nothing but a license for businesses to discriminate,” Kasnetz said in a statement.

“Despite claiming to support our community, Donald Trump has proved to be one of the country’s biggest threats to LGBTQ people. Democrats support the right of LGBTQ people to live and work without fear of being fired or discriminated against simply because of who they are. It’s time for Sessions to stop using the Justice Department as a tool for division and discrimination,” Kasnetz added.

Congressional LGBT Equality Caucus Executive Director Roddy Flynn echoed the sentiments of Kasnetz and stressed how potentially far-reaching the DOJ guidance could be.

“This guidance is a clear attack on the rights of LGBT community and may allow federal employees, contractors, grantees and other businesses to deny employment or services to LGBT people,” Flynn said.

“Though its obvious intent is obscured by flowery language of ‘religious liberty,’ this guidance is as broad as it is menacing. It portends to give a widespread, state-sanctioned, taxpayer funded license to discriminate to anyone who claims a religious motivation for wanting to discriminate,” Flynn added.

Sessions Defends Memos

Sessions defended the memos in a public statement released on Friday, which echoed President Donald Trump’s previous assertion that his administration would “not allow people of faith to be targeted, bullied or silenced anymore.”

“The constitutional protection of religious beliefs and the right to exercise those beliefs have served this country well, have made us one of the most tolerant countries in the world, and have also helped make us the freeist and most generous,” Sessions stated. “President Trump promised that this administration would ‘lead by example on religious liberty,’ and he is delivering on that promise.”

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