DOJ Releases Virulently Anti-Gay ‘Religious Liberty’ Memo

Jeff Sessions and Donald Trump

Capping off a week where the Department of Justice rescinded workplace protections for transgender people, Attorney General Jeff Sessions released a lengthy memo today outlining the DOJ’s intention to allow discrimination through use of ‘religious liberty’ exceptions. The wide-spanning memo never explicitly mentions LGBTQ people, but targets every industry and avenue LGBTQ people have been fighting legal roadblocks to promote equality.

In its multiple ‘key principle’ statements, the “Protections for Religious Liberty” memo essentially offers everyone from adoption agencies and universities to businesses and government entities a license to discriminate against LGBTQ people.

The Memo

Today’s ‘religious liberty’ memo is a direct follow-up to the vague religious liberty executive order. Though it was initially meant to be a more “sweeping” order when first released, it was actually scaled down for implementation. While media pundits noted the watered down version and moved, on, those monitoring the situation grew wary – especially when religious right figures like Todd Starnes didn’t immediately sound the alarms over the order.

Shortly after the order emerged, Starnes told press, “I spoke to a conservative leader late last night instrumental in crafting the order.” He added,  “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.”

It seems his sources were accurate as the sweeping portions of the leaked executive order draft have finally become public Trump administration directives. Those “key principle” directives include:

  1. The freedom of religion is an important, fundamental right, expressly protected by federal law.
  2. The free exercise of religion includes the right to act or not to act in accordance with one’s religious beliefs.
  3. The freedom of religion extends to persons and organizations.
  4. Americans do not give up their freedom of religion by participating in society or the economy, or interacting with government.
  5. Government may not restrict or compel actions because of the belief they display.
    6. Government may not exclude religious individuals or entities based on their religion.
    7. Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.
    8. Government may not officially favor or disfavor particular religious groups.
    9. Government may not interfere with the autonomy of a religious organization.
    10. The Religious Freedom Restoration Act of 1993 (“RFRA”) prohibits the federal government from substantially burdening any aspect of religious observance or practice, except in rare cases where the government has a compelling reason and there is not a less-restrictive option available.
    11. RFRA’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit corporations.
    12. RFRA does not permit the federal government to second-guess the reasonableness of a sincerely held religious belief.
    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.
    16. Title VII of the Civil Rights Act prohibits covered employers from discriminating against individuals on the basis of their religion.
    17. Title VII’s prohibits discrimination on the basis of religious observance or practice as well as belief, unless the employer cannot reasonably accommodate such observance or practice without undue hardship.
    18. The Clinton Guidelines on Religious Exercise and Religious Expression in the Federal Workplace provide useful examples for private employers of reasonable accommodations for religious observance and practice in the workplace.
    19. Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.
    20. Generally, the federal government may not condition federal grants or contracts on the religious organization altering its religious character, beliefs, or activities.

Accompanying the memo is a “backgrounder” statement meant to soften the blow of what amounts to a state-sanctioned license to discriminate that makes Indiana’s abhorrent RFRA look like child’s play. They stated:

As President Trump said, “Faith is deeply embedded into the history of our country, the spirit of our founding and the soul of our nation * * * [and the administration] will not allow people of faith to be targeted, bullied or silenced anymore.” He promised that this administration would “lead by example on religious liberty” and he is delivering on that promise.

The Attorney General has issued legal guidance to all administrative agencies and executive departments about their obligations to protect religious liberty in the United States. The guidance reminds agencies of their obligations under federal law to protect religious liberty, and summarizes twenty key principles of religious-liberty protections that agencies can use in that effort.

As a laughable caveat, the memo adds:

This Guidance does not resolve any specific cases; it offers guidance on existing protections for religious liberty in federal law. 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.

What It Does

The key to understanding the impact of the DOJ ‘religious liberty’ memo is examining the language it uses to define the scope and breadth of the protections it outlines. First and foremost, Principle 3 states the memo applies to both “persons and organizations.”

But it’s more than that.

Analyzing some of the points in depth, Thinkprogress‘ Zack Ford reported:

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…

Of note, Principles 13-15 appear to directly reference Mike Pence’s religious freedom (RFRA) bill that would have been a disaster for LGBTQ people across Indiana.

At the time it was initially passed, SB 101 (the Indiana RFRA) created massive backlash and cost the state millions of dollars in lost tourism and business travel revenue. Thereafter, Pence and the state legislature pushed through a ‘watering down’ bill that tempered the bill’s more explicit anti-LGBTQ bias.

Ford added:

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.

The rest of the list offers LGBTQ people and their allies every reason to believe the Trump administration isn’t just neutral on LGBTQ people, but is actively working to turn back all rights and protections they’ve carved out over the last few decades.

A Pattern

The ‘religious liberty’ memo is just another brick in the tower of anti-LGBTQ bias the administration has consistently demonstrated since even before the election last November.

Some of the administrations other action against the LGBTQ community include:

And then there’s the under-the radar actions the Trump administration has taken to halt or reverse LGBTQ rights.

As anti-LGBTQ organizations and businesses find legal footing and support in an administration hostile to LGBTQ people, those seeking to preserve basic human and civil rights for LGBTQ people now have to wonder: where will the Trump administration draw the line?

 

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Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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