Attorney General Jeff Sessions on Friday issued broad “religious freedom” guidance which appears intended to undermine LGBT rights. The memo comes a day after Sessions rescinded a policy protecting transgender people from discrimination under Title VII of the Civil Rights Act.
The guidance says the government cannot unduly burden people or certain businesses from practicing their faith, noting, “The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.”
The policy does not create new law, but rather interprets how the government should construe the Constitution and existing federal law. It comes on the heels of the Justice Department weighing in on a religious liberty case, in which lawyers under Sessions argued in a brief to the US Supreme Court that a Christian baker had a First Amendment right to deny a gay couple a cake for their wedding.
The guidance memo, which avoided mentioning pending cases by name but did refer to the ongoing controversy over contraception coverage in Obamacare, directs federal agencies to observe 20 “principles of religious liberty.” Among them, it says that religious employers are entitled to hire only workers whose beliefs and conduct are “consistent with the employer’s’ religious beliefs” — a directive adopted under former President George W. Bush — and that some of the legal principles extend “not just to individuals, but also to organizations, associations, and at least some for-profit corporations.”
The US Department of Health and Human Services on Friday announced new rules that will allow employers with a “moral” or “religious” objection to stop covering contraception for employees.
“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. 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 their beliefs.
The memo asserts 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 law is “exceptionally demanding.”