Ses­sions is­sues ‘re­li­gious free­dom’ guid­ance un­der­min­ing LGBT rights

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U.S. At­tor­ney Gen­eral Jeff Ses­sions on Oct. 6 is­sued broad guid­ance al­low­ing in­di­vid­u­als and busi­nesses to act in the name of re­li­gious free­dom — of­ten used as an ex­er­cise for anti-LGBT dis­crim­i­na­tion — with­out fear of govern­ment reprisal.

Ses­sions said in a state­ment his ac­tion — which con­sists of a memo to ad­min­is­tra­tive agen­cies, and an­other memo to Jus­tice Depart­ment at­tor­neys — would en­hance the bedrock prin­ci­ple in the United States of re­li­gious free­dom.

“Our free­dom as ci­ti­zens has al­ways been in­ex­tri­ca­bly linked with our re­li­gious free­dom as a peo­ple,” Ses­sions said. “It has pro­tected both the free­dom to wor­ship and the free­dom not to be­lieve. Ev­ery Amer­i­can has a right to be­lieve, wor­ship and ex­er­cise their faith. The pro­tec­tions for this right, en­shrined in our Con­sti­tu­tion and laws, serve to de­clare and pro­tect this im­por­tant part of our her­itage.”

A back­ground memo ac­com­pa­ny­ing the new guid­ance 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.”

But key por­tions of the memos should be trou­bling to pro­po­nents of LGBT rights.

As­sur­ances against dis­crim­i­na­tion lack­ing

The memo to agen­cies al­lows in­di­vid­u­als to act or ab­stain from ac­tion ac­cord­ing to their re­li­gious be­liefs and pro­hibits the govern­ment from tar­get­ing re­li­gious in­di­vid­u­als and or­ga­ni­za­tions for act­ing on those be­liefs.

The memo as­serts the 1993 Re­li­gious Free­dom Restora­tion Act ap­plies not just to peo­ple, but or­ga­ni­za­tions and some for-profit com­pa­nies. Fur­ther, the guid­ance says RFRA doesn’t per­mit the fed­eral govern­ment to sec­ond-guess a re­li­gious be­lief and as­serts the strict scru­tiny stan­dard un­der the

Oc­to­ber 13, 2017

law is “ex­cep­tion­ally de­mand­ing.”

In the memo to Jus­tice Depart­ment at­tor­neys, Ses­sions urged his sub­or­di­nates to keep in mind the pri­macy of re­li­gious free­dom in ac­tions such as draft­ing rules within the ad­min­is­tra­tion.

Although the memo as­serts the change won’t en­able anti-LGBT dis­crim­i­na­tion un­der the law, that lan­guage is found nowhere as a lim­it­ing prin­ci­ple in the memos them­selves. That as­sur­ance is left out in im­por­tant pas­sages as­sert­ing the pri­macy of re­li­gious free­dom that could be con­strued to al­low anti-LGBT dis­crim­i­na­tion.

Un­der the prin­ci­ples of the guid­ance, for ex­am­ple, a So­cial Se­cu­rity ad­min­is­tra­tor charged with pro­cess­ing ben­e­fits ap­pli­ca­tions could see an ap­pli­ca­tion for same-sex spousal ben­e­fits and refuse to process that ap­pli­ca­tion for re­li­gious rea­sons.

Also in­cluded in the guid­ance is a sec­tion as­sert­ing re­li­gious or­ga­ni­za­tions act­ing on their be­liefs shouldn’t be pe­nal­ized in com­pe­ti­tion for fed­eral con­tracts. That could con­flict with for­mer Pres­i­dent Obama’s 2014 ex­ec­u­tive or­der bar­ring anti-LGBT dis­crim­i­na­tion in the work­place, which Pres­i­dent Trump said he’d up­hold, and green-light anti-LGBT dis­crim­i­na­tion among fed­eral con­trac­tors in other ca­pac­i­ties, such as the de­nial of ser­vices.

Guid­ance fol­lows Trump ex­ec­u­tive or­der

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.

Com­mend­ing the Trump ad­min­is­tra­tion for the mem­o­randa was Tony Perkins, pres­i­dent of the anti-LGBT Fam­ily Re­search Coun­cil.

“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.”

Ses­sions is­sues the guid­ance as a re­sult of an ex­ec­u­tive or­der Trump signed in May em­pow­er­ing the at­tor­ney gen­eral to is­sue re- li­gious free­dom guid­ance. Although the ex­ec­u­tive or­der said noth­ing about LGBT is­sues, many feared hand­ing that author­ity to Ses­sions would en­able to him di­rect the govern­ment to dis­crim­i­nate against LGBT peo­ple.

Drew Hud­son, a Jus­tice Depart­ment spokesper­son, echoed the sen­ti­ment that the guid­ance doesn’t en­able dis­crim­i­na­tion — anti-LGBT or oth­er­wise — in re­sponse to a Wash­ing­ton Blade in­quiry on how that could be the case given the lan­guage within the doc­u­ment.

“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,” Hud­son said. “The guid­ance also does not change ex­ist­ing state or fed­eral pro­tec­tions for mi­nor­ity groups, in­clud­ing mem­bers of the LGBT com­mu­nity. The guid­ance ex­plains the rel­e­vant pro­tec­tions for re­li­gious lib­erty that al­ready ex­ist within fed­eral law.”

Law­suits may be com­ing

The memos are the lat­est in a string of ac­tions from the Trump ad­min­is­tra­tion, and Ses­sions in par­tic­u­lar, un­der­min­ing LGBT rights. It 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 to ap­ply to cases of trans­gen­der dis­crim­i­na­tion.

The re­li­gious free­dom guid­ance also comes on the same day the Trump ad­min­is­tra­tion rolled back a man­date un­der the Af­ford­able Care Act re­quir­ing busi­nesses to in­clude birth con­trol as part of in­sur­ance cov­er­age. Both ac­tions were the re­sult of Trump’s ex­ec­u­tive or­der in May.

It re­mains to be seen if le­gal or­ga­ni­za­tions 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 hold the Trump ad­min­is­tra­tion to its as­ser­tion the 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.”


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