Attorney General Issues 'License To Discriminate' Against Gays, Women

President Donald Trump House Speaker Paul Ryan and Senate Majority Leader Mitch McConnellSource Chip Somodevilla  Getty Images
President Donald Trump House Speaker Paul Ryan and Senate Majority Leader Mitch McConnellSource Chip Somodevilla Getty Images
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08 October, 2017

The statement by Attorney General Jeff Sessions, with a long legal analysis by the department's lawyers, is meant to be guidance to the rest of the federal government on how to decide conflicts involving declarations of religious belief _ for example, the recent case involving a baker who refused to make a cake for a gay couple's wedding.

Also on Friday, the Department of Justice announced a religious freedom guidance that was ordered by President Trump in his May 4 executive order on religious freedom. Experts on religious liberty are saying Sessions' "guidance" will mostly likely prompt wide-ranging lawsuits against the government.

Under the 1993 law, the federal government must not substantially burden one's deeply-held religious beliefs unless it establishes that to do so is in its "compelling interest" and is the "least-restrictive means" of fulfilling that interest.

The policy says the mere claim that someone's religious freedom was violated is enough to override many anti-discrimination protections for LGBT people, women and others.

Unsurprisingly, the DOJ's directive was met with effusive praise by right-wing lawmakers and religious organizations, and fierce condemnation by civil rights groups that argue the Sessions memo constitutes little more than a "license to discriminate" against the LGBTQ community.

In the case of the Little Sisters of the Poor against the mandate at the Supreme Court, the Supreme Court in a rare move in the middle of the case ordered both the plaintiffs and the government to submit briefs detailing if, and how a solution could be crafted that provided for cost-free coverage outlined in the HHS mandate, while at the same time maintaining the religious freedom of the non-profits that sued the government. 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.

A Justice Department official who briefed reporters on the new legal guidance insisted that it does not amount to a license to discriminate.

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Sarah Kate Ellis, President and CEO of GLAAD, said: "Today's guidance by Jeff Sessions proves this Administration will do anything possible to categorize LGBTQ Americans as second-class citizens who are not equal under the law". Further, our nation has a longstanding bi-partisan commitment to religious liberty as evidenced by Senator Ted Kennedy's passionate advocacy for the passage of the Religious Freedom Restoration Act (RFRA).

"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.

But civil liberties groups say the memo lays groundwork for discriminatory action by government contractors, religious groups, and businesses.

Elsewhere, the memo asserts that religious groups "generally may not be required to alter their religious character to participate in a government program". But critics say the guidance could undermine protections for the LGBT community.

The Alliance Defending Freedom, a conservative Christian law firm, called it "a great day for religious freedom". Then-Attorney General Eric Holder's 2014 position on the matter was that the word "sex" in the statute "extends to claims of discrimination based on an individual's gender identity, including transgender status". But the new guidance, demonstrating the unsafe distortion of religious liberty by the Supreme Court's conservatives in the Hobby Lobby case, redefines "significant burden" to essentially cover being offended. It references the Hobby Lobby Supreme Court case rejecting contraception mandates.

Rebecca Isaacs, Executive Director of the Equality Federation, said the latest memo was a "an attack on the values of freedom and fairness that make this nation great".

Additionally, in 2015 while Mike Pence was governor, in passed its own version of the Religious Freedom Restoration Act, despite outcry from opponents who argued the bill could be used to legally discriminate against LGBTI people. This is consistent with the EEOC's 2016 Strategic Enforcement Plan, which includes "p$3 rotecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex" as a top enforcement priority.


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