Sessions Memo Expands On Religious Liberty Exemptions

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

President Trump signed Executive Order 13798 on May 4 to declare the policy of the United States government regarding religious liberty under the U.S. Constitution and federal law, the first such order in American history.

But the guidance is so sweeping that experts on religious liberty suggested Friday that it could prompt a slew of lawsuits against the government.

RFRA does not permit the federal government to second-guess the reasonableness of a sincerely held religious belief. A claim of a violation of religious freedom could undercut anti-discrimination protections for LGBT people, women and other minorities or protected classes.

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In a statement on Friday, Vanita Gupta, president and CEO of The Leadership Council on Civil and Human Rights, argued that the Sessions directive is "yet another mean-spirited attack against the LGBTQ community, people of color, and other minorities".

Early in the memo, the guidance asserts, "Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place".

Because of a new interim final rule announced October 6 by the Trump administration, clients of First Liberty are now exempt from the Affordable Care Act's contraceptive mandate, which forced businesses, ministries, and other non-profit organizations to reject their religious beliefs and moral convictions or violate the law. Since then, ADF has established itself as a leading litigation and appellate advocacy group for Christian right causes, including opposition to abortion and same-sex marriage, and social conservatives hail the group as champions of religious freedom.

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.

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Politico adds that this new legal guidance "could affect health care, gay rights, political action by churches", and says it takes a "muscular view of religious freedom rights". Enacted in 1993, RFRA is one of the primary legislative pillars upon which religious freedom arguments have rested in the last two decades.

Finally, the document released by Sessions said that religious organizations must have equal footing in applying for federal aid or grant programs - they may not be denied participation in these programs when the money is going toward activities that are not explicitly religious in nature.

'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.

The 20-point guidance specifically says that the government can not make the disavowal of a religious view a condition of an organization or group receiving a grant or contract from the federal government and that "the freedom of religion extends to persons and organizations". Federal law says that is permitted, the memo says. But critics say the guidance could undermine protections for the LGBT community. "We welcome President Trump's commitment to continue this legacy of protecting religious liberty". So courts have ruled this way. Sessions explained while Title VII prohibits "sex-stereotypes", insofar as that sort of sex-based consideration causes disparate treatment between men and women, Title VII is not properly construed to proscribe employment practices that take into account the sex of employees, but do not impose different burdens on similarly situated members of each sex. "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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Sessions also clarifies religious protections under Title VII in federal law governing employers, regarding (#16) not discriminating against employees on the basis of religion, including (#17) religious observance and practice. "I would never use my faith to justify harm and discrimination to others like this country does to me".

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