Above Photo: In issuing the memo, Jeff Sessions is injecting the department into a thicket of highly charged legal questions that have repeatedly reached the US supreme court. Photograph: Aaron Bernstein/Reuters
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The Sessions directive effectively lifts a burden from religious objectors to prove their beliefs about marriage or other topics are sincerely held.
The attorney general, Jeff Sessions, on Friday issued a sweeping directive that undercuts federal protections for LGBT people, telling agencies to do as much as possible to accommodate those who claim their religious freedoms are violated.
In response, one LGBT rights advocate called the directive a “license to discriminate” and “an attack on the values of freedom and fairness that make this nation great”.
Also on Friday, the Trump administration issued a new rule that substantially undermines women’s access to birth control under the Affordable Care Act.
The Sessions directive, an attempt to deliver on Donald Trump’s pledge to evangelical supporters that he will protect religious liberties, effectively lifts a burden from religious objectors to prove their beliefs about marriage or other topics are sincerely held.
A claim of a violation of religious freedom will now be enough to override many anti-discrimination protections for LGBT people, women and others.
The guidelines are so sweeping that experts on religious liberty called them a legal powder keg that could prompt wide-ranging lawsuits against the government.
“This is putting the world on notice: you better take these claims seriously,” Robin Fretwell Wilson, a law professor at the University of Illinois at Urbana-Champaign, told the Associated Press. “This is a signal to the rest of these agencies to rethink the protections they have put in place on sexual orientation and gender identity.”
Rebecca Isaacs, executive director of the Equality Federation, said in a statement: “This license to discriminate is 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% believe laws should protect LGBTQ people from discrimination.
“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.”
Trump announced plans for the directive last May in a Rose Garden ceremony, surrounded by religious leaders. Since then, religious conservatives have awaited the justice department guidance, hoping for greatly strengthened protections for their beliefs amidst a rapid national acceptance of LGBT rights.
Religious liberty experts said they would have to see how the guidance would be applied by individual agencies, both in crafting regulations and deciding how to enforce them. But experts said the directive clearly tilted the balance very far in favor of people of faith who do not want to recognize same-sex marriage.
“Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law,” Sessions wrote. “To the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity.”
The document lays the groundwork for legal positions the Trump administration intends to take in religious freedom cases, envisioning sweeping protections for faith-based beliefs and practices in private workplaces and government jobs and even in prisons.
In issuing the memo, Sessions, a deeply devout Methodist from Alabama, is injecting the department into a thicket of highly charged legal questions that have repeatedly reached the US supreme court, most notably in the 2014 Hobby Lobby case that said corporations with religious objections could opt out of a health law requirement to cover contraceptives for women.
The memo makes clear the justice department’s support of that opinion in noting that the primary religious freedom law, the Religious Freedom Restoration Act of 1993, protects the rights not only of people to worship as they choose but also of corporations, companies and private firms.
The document also says the government improperly infringes on individuals’ religious liberty by banning an aspect of their practice or by forcing them to take an action that contradicts their faith. As an example, justice department lawyers say government efforts to require employers to provide contraceptives to their workers “substantially burdens their religious practice”.
The document also calls into question the Johnson amendment, which bars churches and tax-exempt groups from endorsing political candidates. Trump in May signed an executive order aimed at weakening the enforcement of that law, which he has said penalizes people for protected religious belief.
The justice department, in the document, says the Internal Revenue Service may not enforce the Johnson amendment “against a religious non-profit organization under circumstances in which it would not enforce the amendment against a secular non-profit organization”.
The department’s civil rights division will now be involved in reviewing all agency actions to make sure they don’t conflict with federal law regarding religious liberty.