United States Attorney General Jeff Sessions issued broad guidelines on Friday that allow individuals and organizations to act in the name of religious freedom without fear of government reprisal.
The guidelines are seen as potentially undermining protections for LGBTI people since religious freedom is often used as a justification for LGBTI discrimination.
Under the new policy, a claim of violation of religious freedom would be enough to override concerns about civil rights for LGBTI people.
In essence, it says that religious rights trump civil rights.
The policy would also allow religious freedom to be used as a basis for discrimination against women and other minorities.
Sessions said that his guidelines would enhance the fundamental American principle of religious freedom.
‘Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law,’ Sessions wrote. ‘To the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity.’
That background memo 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.’
However, portions of the memo seem to set things up for people to use religious freedom as a basis for LGBTI discrimination.
The memo allows individuals to act, or abstain from acting, in accordance with their religious beliefs and prevents the government from prosecuting people for acting on those beliefs.
The memo also asserts the 1993 Religious Freedom Restoration Act applies not only to people, but also to organizations and businesses.
The guidelines forbids the government from attempting to ‘second-guess’ a religious belief. If a person or organization invokes ‘religious belief,’ the government will not attempt to verify if the claim is valid.
The memo asserts these changes will not enable anti-LGBTI discrimination under the law. However, the Washington Blade notes that language specifically spelling that out is not found in the memo.
Reaction was swift with LGBTI rights organizations condemning the policies.
Chad Griffin, president of the Human Rights Campaign (HRC), called the guidelines an ‘all-out assault on LGBTQ people, women, and other minority communities.’
‘This blatant attempt to further Donald Trump’s cynical and hateful agenda will enable systematic, government-wide discrimination that will have a devastating impact on LGBTQ people and their families,’ Griffin said in a statement. ‘Donald Trump and Mike Pence have proven they will stop at nothing to target the LGBTQ community and drag our nation backwards. We will fight them every step of the way.’
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.
However, Tony Perkins, president of the anti-LGBT Family Research Council, praised the action.
‘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.’
Legal organizations likely 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 ensure that 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.’
Sessions issued the guidance as a result of an executive order President Donald Trump signed in May empowering the attorney general to issue religious freedom guidance.
This memo 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 as applying to cases of transgender discrimination.
Sessions’ guidelines comes on the same day that the Trump administration ended a provision of the Affordable Care Act requiring businesses to include birth control as part of insurance coverage.
Congress passed the Religious Freedom Restoration Act in 1993 in response to outcry about a Supreme Court case involving two members of a Native American church in Oregon who used the hallucinogen peyote in a religious ceremony.
When the two tested positive for a Schedule I drug (peyote), they were fired from their jobs and denied unemployment benefits. In Employment Division vs Smith, the Supreme Court ruled that the individuals were not exempt from Oregon’s narcotics laws.
Justification for discrimination
Although Congress intended the Religious Freedom Restoration Act (RFRA) to only apply to individual’s religious freedoms from government infringement, in the ensuing years, some for-profit companies and religious groups have claimed religious rights as justification for discriminating against women and LGBTI people.
The Christian-owned craft store chain Hobby Lobby refused healthcare coverage of several forms of birth control to its female employees under RFRA exemptions and the Supreme Court allowed it in a 2014 ruling.
A federal district court also allowed a Christian funeral home in Michigan to fire a transgender employee for RFRA reasons in a 2016 ruling.
Additionally, in 2015 while Mike Pence was governor, Indiana passed its own version of the Religious Freedom Restoration Act, despite outcry from opponents who argued the bill could be used to legally discriminate against LGBTI people.
Many other states have passed similar religious freedom bills.