The Department of Justice today issued a guidance document on religious freedom that actually creates a broad license to discriminate against LGBT people, single mothers, and others.
The long-anticipated guidance isn’t a law or a rule, but it does lay out what the federal government’s position will be in court cases and how federal agencies and contractors will operate, leaders of several civil rights groups explained on a conference call with reporters Friday morning.
For instance, an employee of the Social Security Administration or Department of Veterans’ Affairs could refuse to process benefits paperwork for a widowed same-sex spouse, without repercussions, said JoDee Winterhof, senior vice president for policy and political affairs at the Human Rights Campaign. A nonprofit group with a federal contract could refuse to provide services to LGBT people, even in emergencies, and would not be in danger of losing its contract.
“This was meant to have a very deep and broad-reaching impact for people’s day-to-day lives,” she said.
The guidance means federal agencies, contractors, and more "can discriminate at will and the government will do nothing to stop it," added Winnie Stachelberg, executive vice president for external affairs at the Center for American Progress.
Not only can contractors or federal grantees refuse service to LGBT people and others who offend the institution's religious sensibilities, they can be denied employment or fired, noted Louise Melling, deputy legal director for the American Civil Liberties Union. The Justice Department guidelines actually encourage companies and nonprofits to discriminate, she said. "It is a deeply troubling guidance," she added.
In issuing the guidance, Attorney General Jeff Sessions wrote, “Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. Except in the narrowest of circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance should be reasonably accommodated in all government activity, including employment, contracting and programming.”
Among the guidance memo's provisions are "Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers' religious precepts" and "As a general matter, the federal government may not condition receipt of a federal grant or contract on the effective relinquishment of a religious organization’s exemptions or attributes of its religious character."
The guidance was issued pursuant to an executive order Donald Trump signed in May. Many activists expected that order to include "license to discriminate" language, but it did not, instead focusing on protecting the tax-exempt status of churches and other religiously affiliated organizations if they speak out on political matters. That order did, however, direct Sessions to prepare guidance on interpreting federal law on religious freedom.
The guidance, Melling said, is based on an extremely broad reading of the federal Religious Freedom Restoration Act of 1993. Religious freedom is an important value, she said, written into the U.S. Constitution and frequently defended by the ACLU, but religious freedom doesn't give a person the right to harm someone else — which is exactly what this guidance does.
The good news, activists on the call noted, is that state and local antidiscrimination laws remain in effect and that people who have suffered discrimination can sue under these laws. There are also federal courts that have held that Title VII of the Civil Rights Act of 1964 bans discrimination based on sexual orientation or gender identity, and lawsuits relying on this interpretation of Title VII are still being heard. The Trump administration has already argued against this interpretation and will continue to do so, but victims of discrimination should keep on suing, the activists advised.
Numerous LGBT and other progressive groups issued statements denouncing the guidance. A sampling:
“The guidance is meant to 'protect' the anti-LGBTQ child welfare worker who is opposed to placing young people in foster care with a lesbian couple. It is meant to 'protect'” the transphobic shelter worker who refuses to give a transgender person a place to sleep for the night. It’s meant to 'protect' the anti-Semitic restaurant owner who doesn’t want to serve a Jewish customer. It’s meant to 'protect' the pharmacist who wants to make decisions for others and refuses to administer birth control. The list goes on. This guidance won’t stand because we won’t stand for it.” — Rea Carey, executive director, National LGBTQ Task Force
“Today’s Department of Justice guidelines are merely a license to discriminate based on so-called religious freedom, and they are a disaster for this country. Neither individuals nor faith-based organizations — nor any other entity — have the right to elevate their religious beliefs above the laws that protect all Americans. For LGBT elders, this guidance is particularly dangerous because the vast majority of long-term care providers in the U.S. are operated by faith-based organizations. The notion that the federal government would support such organizations putting their religious beliefs above their legal, ethical, and professional responsibilities of providing respectful, discrimination-free care is outrageous. SAGE and LGBT elders will fight any effort to implement this license to discriminate against LGBT elders and the larger LGBT community.” — Michael Adams, CEO, SAGE
“Memo by memo, tweet by tweet, the president and attorney general are chipping away at transgender people’s freedom, lives, and right to fair treatment. This administration is systematically breaking down the protections that make it possible for people like me, a transgender man of color, to survive and thrive. From the start, this administration has singled our communities out for discrimination because of race, religion, gender, disability, immigration status, and sexual orientation. Transgender Law Center will meet today’s new attack as we have met the ones before: by challenging it with everything we’ve got.” — Kris Hayashi, executive director, Transgender Law Center
“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. 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.” — Jaime M. Grant, executive director, PFLAG National
“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. “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.” — Democratic National Committee spokesman Joel Kasnetz
“The Department of Justice has declared open season on transgender and other LGBTQ people, hot on the heels of the Department of Health and Human Services denying necessary healthcare to hundreds of thousands of people. With their actions, these agencies attempt to turn our most cherished civil rights laws into little more than civil rights suggestions." — Mara Keisling, executive director, National Center for Transgender Equality
"The Trump Administration’s ongoing attempts to undermine LGBTQ Americans ability to provide for themselves and their families without fear of discrimination highlights the urgent need for national nondiscrimination protections, which are supported by the vast majority of Americans." —Rebecca Isaacs, executive director, Equality Federation
“Federal agencies, government contractors, and grant recipients should not be permitted to discriminate simply by citing a religious belief for doing so. We urge the federal courts to reject the radical efforts by this administration to justify discrimination on the basis of religion. We are strengthened as a nation when we work to protect and balance the rights and dignity of all.” — Vanita Gupta, CEO, Leadership Conference on Civil and Human Rights
Also today, the Department of Health and Human Services issued two new federal rules gutting the Affordable Care Act’s mandate for employer-provided insurance plans to include coverage for contraceptives at no cost to the employee. The rules will let any nonprofit or for-profit employer obtain an exemption from the mandate if they have a religious or moral objection to contraception, Reuters reports. As issued under President Obama, there was already a provision for religiously affiliated groups to have the coverage funded by their insurers rather than the organization, but some employers found that insufficient.
The Roman Catholic Church opposes all forms of "artificial" contraception, and some religious groups believe that certain methods of contraception, such as the birth control pill and the intrauterine device, actually result in an early abortion.
The American Civil Liberties Union planned to file a lawsuit Friday aimed at keeping the rules from going into effect, as did California Attorney General Xavier Becerra, Politico reports. Other progressive groups joined in denouncing the HHS move.
“The vast majority of women will use birth control in the course of their lifetime. Most Americans support no-copay birth control and consider it a noncontroversial topic, because most Americans understand that a woman’s ability to access basic health care should not be up for debate,” said Anna Galland, executive director of MoveOn.org Civic Action, in a press release. “A woman’s health care decisions should be kept between her and her doctor — not her boss or the president.”