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The Justice Department OK'd My Firing in the Name of Religious Liberty

DOJ Authorized My Firing in the Name of Religious Liberty

Michael J. Stern, who nearly lost his job as a federal prosecutor due to antigay bias, wonders what additional damage Trump's "religious liberty" moves will bring.

During his tenure as Donald Trump's attorney general, Jeff Sessions announced the formation of a Religious Liberty Task Force. This task force, powered by the federal government's Department of Justice, is supposed to ensure religious liberty for all. But I know the real intent behind its creation. You see, I have been on the receiving end of DOJ's efforts to spread religious liberty. It nearly cost me my career and pulled me into a rabbit hole of depression from which I was unsure I'd escape.

After finishing law school in the mid-1980s, I moved back to my hometown in Michigan and was hired by a state prosecutor's office just outside of Detroit. I loved the work. I was prosecuting murder, rape, and child abuse cases, and I felt a sense of accomplishment in making my community safer. I was working 70-hour weeks, and I quickly rose through the ranks to the elite handful of attorneys who handled only felony trials. I had a track record of success with difficult cases, and the elected prosecutor had confidence in my work, so he often assigned me to high-profile cases that got a lot of media attention. Soon I was recruited by the U.S. Attorney's Office in Detroit.

I felt a beaming sense of pride when the Department of Justice offered me a job as a federal prosecutor. When I joined the U.S. Attorney's Office, a month before the decade rolled into 1990, I was 29, the youngest federal prosecutor in an office of more than 100 attorneys. Even in gray Detroit, I saw only blue skies ahead of me.

Like all other newly hired federal prosecutors, until my security clearance was completed, I was allowed to work but not access classified information. A few months into the job, two FBI agents walked into my office unannounced. After introducing themselves, they informed me that they had been assigned to investigate my application for a security clearance. I could tell from the looks on their faces that something was wrong.

One of the agents asked me if I led an "alternative lifestyle." I knew what he meant. In that moment of panic, I weighed my options. I responded with my default setting: I told the truth. "I do not lead an 'alternative lifestyle,' but if you're asking me if I'm gay, the answer to that question is yes."

The brief discussion that ensued was not pretty. What I remember most from the discussion were the phrases "moral standards," "subject to blackmail," and "possible discharge." I assured the FBI agents that I was not subject to blackmail. My close family and friends knew that I was gay, and if I had to, I would be willing to come out more publicly to foreclose any possibility that being gay would subject me to blackmail. But that did not work. Although the agents were polite and professional, they made clear that a gay man did not meet the DOJ's moral standards. When I asked if my job was in jeopardy, they answered yes.

Over the next several months, the FBI contacted my parents, family friends, former coworkers, judges I practiced before, and my neighbors, asking them if they knew about my "alternative lifestyle." And for those months, every day I went to my job at the Department of Justice I knew I was on borrowed time.

Finally, I got the call from the U.S. attorney's secretary, asking me to come to his office to discuss my security clearance. I knew that if I was fired from the Department of Justice for being gay, there was no going back to the conservative Republican-led state prosecutor's office I'd left for DOJ. I had no idea where I'd go and if I'd get another job in law.

As I walked to the U.S. Attorney's Office, I began to sweat. My shirt was sticking to my back, my hair was matted to my head, and I had to keep flicking my little fingers in and out of my ears to clear the pooling sweat so I could hear. My heart was beating so violently, I was sure my chest carried an earthquake.

The U.S. Attorney was Stephen Markman, a staunch Republican. Markman is currently the chief justice on the Michigan Supreme Court, but at the time, he had just been appointed U.S. attorney in Detroit. Markman directed me to sit down. He then told me that the Department of Justice had authorized him to fire me because my background investigation revealed that I'm gay. I think the word he used was "homosexual," but it's difficult to remember nuance when your head is exploding.

As I put my hands on the arms of the chair to hoist myself up and out of his office, the U.S. attorney motioned me to sit back down. Markman told me that although the DOJ had authorized him to fire me, he had also been authorized to keep me on. He decided to keep me on.

I can't remember walking out of Markman's office, and I can't remember the next several days. It's as though the combustion of emotional pressure wiped my memory. And while I cannot remember the days after that meeting, I can never forget that the U.S. Department of Justice stamped me morally bereft, based on a twist of my DNA helix, and authorized the destruction of my career because of it.

I spent the next 10 years at the U.S. Attorney's Office in Detroit and 15 more in Los Angeles. I felt privileged to handle some of the most significant investigations and prosecutions brought by DOJ during my time with the government. I also felt honored when I was twice flown to Washington and handed an award by the attorney general for my work at DOJ. To this day, on the DOJ Special Operations Division website, one of my cases tops the list of its most successful prosecutions.

Even with all the accolades I received early in my career at DOJ, I always knew that I could be fired at any moment for being gay. It was not until the late 1990s that President Bill Clinton signed an executive order prohibiting discrimination in the federal workplace based on sexual orientation. I'll never forget when that memo was distributed throughout the office. It was the first time I felt safe in my job. I made four copies of the memo and hid them in different places. It seems crazy now, but as I squirreled away copies of that memo, I remember thinking that if things go back to the way they were, I want proof that I was promised a job that could not be snatched away from me because I'm gay.

Today, members of the LGBT community outside this sector have no federal protection against discrimination in employment and in public accommodations, like restaurants and hotels. The only protection against open discrimination against LGBT citizens has come from laws passed in some states and cities. And now the Department of Justice wants to effectively undo those laws.

Under the thinly veiled guise of "religious liberty," President Donald Trump's Justice Department has transformed the First Amendment right to freely observe the religion of one's choice into the newly created right to openly discriminate. The seeds of this mutation were planted decades ago, but since the Supreme Court ruled in favor of marriage equality in 2015, the GOP has made finding a way to legally discriminate against LGBT people a rallying cry to a base that is hungry to maintain political dominance in the face of an increasingly diverse American electorate.

This recent offensive began with a Kentucky clerk who insisted that issuing a public marriage license to a same-sex couple would defile the institution of marriage. The four-times-married clerk claimed "religious freedom" allowed her to refuse to perform her elected job. In the standoff that ensued, the clerk drew substantial support from Republican politicians, including U.S. Sen. Ted Cruz of Texas and former Arkansas Gov. Mike Huckabee, who characterized judicial orders directing the clerk to perform her job as the "criminalization of Christianity."

Let's be clear, white Christians are not at risk of having their religion criminalized or being subjected to wide-spread discrimination in the United States. The irony of such an accusation is particularly galling given that so many who are safely insulated from discrimination want to mainstream raw bigotry as an acceptable form of religious expression.

Recently, white, Christian, blond Laura Ingraham, the leader of Fox News Channel's Barbie army, gave us a rare look behind the curtain. Replacing the dog whistle with a bullhorn, Ingraham announced that there has been a "massive demographic" change "foisted" on America and that most Americans don't like it. Translation: The white Christian majority does not like losing its political power and needs to do something about it. Of course, Ingraham does not speak on behalf of all white Christians. But her on-camera rant revealed the sentiment of the base that elected Donald Trump president and propelled Fox News to become the most watched cable newscast. What I cannot accept is that the Department of Justice is now marshaling the power of the U.S. government to champion their cause.

The cases of DOJ-supported discrimination have already begun. The Department has gratuitously joined two cases in which it was not a party. In one case, a bakery refused to make a wedding cake for a gay couple, in violation of a Colorado civil rights law. In the other case, a business owner in New York fired one of his employees after learning he is gay. In both instances, the Department of Justice joined the cases not to support the people discriminated against but instead to represent the business owners who openly discriminated.

While the two cases were brought on different legal grounds, the department's decision to interject itself into cases in which it was not a party has its origins in the same cesspool of fanaticism that will be the lifeblood of the Religious Liberty Task Force.

Jeff Sessions may be gone, but the damage from his Religious Liberty Task Force has only begun. The possibilities are harrowing and the metastatic impact will not be limited to propping up discrimination against the LGBT community.

What happens when the owner of a hotel chain refuses to rent rooms to mixed-race couples because he holds a sincere religious belief that God created separate races and did not intend for them to mix? And what about the business owner who finds ample support in the Bible that women are designed to be subservient to men and decides he does not want to employ women in positions of power? Will we see the Department of Justice intercede and support the "religious liberty" of these discriminating business owners?

I also can't help but wonder what response will come from DOJ when the barrel of "religious liberty" is aimed at its strongest supporters. President Trump, the talking heads at Fox News, and countless Trump voters nearly burst a collective vein when White House press secretary Sarah Sanders was politely asked to leave a Virginia restaurant by its owner. The owner's sincerely held moral beliefs, related to honesty and compassion, compelled her to ask Sanders to leave the restaurant. Would DOJ provide legal support to the restaurant owner if Sanders sued, claiming a violation of local antidiscrimination laws?

Given the Bible's condemnation of adultery, will DOJ's Religious Liberty Task force intercede to champion the religious freedom of a business owner who refuses to serve President Trump, Newt Gingrich, Rudy Giuliani, and countless other GOP political figures who are publicly known to have committed adultery?

Should we expect the Trump-created Task Force to come to the rescue of an athlete who is fired after exercising his religious liberty by kneeling at a football game?

Right-minded people can legitimately debate which Trump policy will be most damaging to American democracy. The coffers are filled with countless political horrors from which to choose. But I have always felt that Donald Trump's efforts at rebranding raw discrimination as "religious liberty" would be the most lasting and corrosive component of his presidency.

With the ascension of Brett Kavanaugh to the Supreme Court, the president has enough votes to undo decades of civil rights laws that protect minorities from popular subjugation. It is only a matter of time before the court takes an ax to Pandora's box and rules that a claim of "religious liberty" trumps state and federal laws designed to make life safer and more fair for people who are gay, brown, black, female, Jewish, or anything other than white Christian men. The Justice Department's new religious liberty policy is sugar in a child's mouth at bedtime. The decay of civil rights will not come all at once, but it will surely come.

As a nation, we need to keep in mind that discrimination is not a thing of the past. I've always known of human nature's darker side. But I never expected that in 2019 the underbelly of discriminatory injustice would be protected by my own government and an agency that calls itself the Department of Justice. If the DOJ is no longer going to work to protect justice, the time has come to retire its name.

MICHAEL J. STERN was a state prosecutor near Detroit and a federal prosecutor, for 25 years, in Detroit and Los Angeles.

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