Religious Liberty or Discrimination?

Attorney General Jeff Sessions issued a government-wide memo to bolster federal protections for religious liberties on Friday, a move that could also weaken the federal government’s ability to prevent gender and LGBT discrimination.

In the 25-page memo, Sessions outlines 20 principles of religious liberty for federal departments and agencies to observe. The principles don’t create new protections against religious discrimination; instead, they instruct officials to give greater deference to religious-liberty claims under existing statutory and judicial protections.

“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. “Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be accommodated in all government activity, including employment, contracting, and programming.”

The memo places the Justice Department’s full weight behind the Trump administration’s ongoing efforts to roll back Obama-era legal interpretations that favored women and LGBT Americans. It prioritizes claims of religious-liberty violations over virtually every other concern, including anti-discrimination protections for gay, lesbian, and transgender Americans. And it invites Americans to invoke their faith to opt out of a range of federal rules and regulations when relevant.

The most immediate effect came from the Department of Health and Human Services, where officials issued new rules to largely dismantle the contraceptive mandate for health insurance. (In this case, the rollback also coincided with another top administration priority: to destabilize the Affordable Care Act.) Social conservatives have fought the mandate for years, arguing it compelled employers to violate their religious beliefs. Defenders said it insulated employees and their medical decisions from the personal beliefs of their employers.

Sessions adopted the social-conservative stance in Friday’s memo. The government, he wrote, could not “second-guess the determination of a religious employer that providing contraceptive coverage to its employees would make the employer complicit in wrongdoing in violation of the organization’s religious precepts.” In practical terms, my colleague Vann Newkirk explained, the new rules will now allow virtually any employer to claim the exception and stop providing employees with insurance plans that include contraception.

The Obama administration faced prolonged legal battles during its tenure over the Affordable Care Act’s contraceptive mandate, including two Supreme Court cases. Friday’s shift could lead to similar clashes. The ACLU said it would challenge the administration’s reversal only hours after the announcement, arguing it violates the Constitution’s religious-freedom and equal-protection guarantees. Brigitte Amiri, a senior staff attorney for the organization, said the administration “is forcing women to pay for their boss’s religious beliefs.”

Democratic-led states could also join the fight. “We have been anticipating this awful idea and have already begun working with other states to evaluate any legal response that may be appropriate to protect our citizens’ private decisions and access to affordable healthcare,” Virginia Attorney General Mark Herring said in a statement.

Sessions’s memo also sets the stage for federal departments and agencies to withdraw Obama-era protections for LGBT rights. The rules give broad deference to claims brought under the Religious Freedom Restoration Act, a 1993 federal law that forbids the government from “substantially burdening” any exercises of religious belief. Because the memo gives maximum latitude to invocations of religious belief, it could limit discrimination claims made by gay, lesbian, and transgender Americans.

“This guidance is designed to do one thing—create a license to discriminate against the LGBTQ community and others, sanctioned by the federal government and paid for by taxpayers,” Vanita Gupta, who led the Justice Department’s Civil Rights Division during the Obama administration, said in a statement. Chad Griffin, the president of the Human Rights Campaign, accused Trump of furthering a “cynical and hateful agenda” and said the memo “will enable systematic, government-wide discrimination that will have a devastating impact on LGBTQ people and their families.”

The Supreme Court is currently weighing a similar issue at the state level in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case centers on Jack Phillips, a Colorado baker who refused to bake a wedding cake for Charlie Craig and David Mullins, citing his personal objections to marriages between same-sex couples. The state’s civil-rights commission ruled Phillips had violated the state’s public-accommodations law by not baking the cake; he appealed the case in the federal courts on religious-liberty grounds. The court has yet to set oral arguments in the case, and a ruling won’t be handed down until at least next year.

Sessions has already undertaken multiple steps to reverse Obama-era protections for LGBT rights. The day before releasing Friday’s memo, he revoked guidance issued by former attorney general Eric Holder that had instructed U.S. attorneys to interpret gender identity as part of the Civil Rights Act of 1964’s ban on discrimination of the basis of “sex.” The interpretation widened those protections to include transgender Americans. Sessions replaced it with guidance advising that the protections only applied to biological sex.

Friday’s guidance came as part of the Justice Department’s enforcement of a May executive order issued by President Trump on religious liberty. In a statement announcing the memo’s release, Sessions framed it as a defensive move aimed at protecting religious freedom in the United States. “As President Trump said, ‘Faith is deeply embedded into the history of our country, the spirit of our founding and the soul of our nation ... [this administration] will not allow people of faith to be targeted, bullied, or silenced anymore,’” the attorney general wrote.