Employment Law Daily DOJ’s religious liberty guidance seen as license to discriminate against LGBTQ
Friday, October 6, 2017

DOJ’s religious liberty guidance seen as license to discriminate against LGBTQ

By Pamela Wolf, J.D.

On October 6, 2017, Attorney General Jeff Sessions issued guidance to all administrative agencies and executive departments on religious liberty protections mandated under federal law. The memorandum was issued pursuant to President Trump’s May 4 Executive Order No. 13798, “Presidential Executive Order Promoting Free Speech and Religious Liberty,” which directed the Attorney General to “issue guidance interpreting religious liberty protections in Federal law” in order “to guide all agencies in complying with relevant Federal law.” Several civil rights organizations reacted immediately, seeing the guidance as a “license to discriminate” against LGBTQ individuals.

Broadly, the religious liberty guidance interprets existing protections for religious liberty in federal law, identifying 20 high-level principles that administrative agencies and executive departments can put to practical use to ensure the religious freedoms are lawfully protected. A second memorandum directed to the Justice Department directs implementation of the religious liberty guidance within the DOJ.

“Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law,” the guidance states. “Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting and programing.”

“Our freedom as citizens has always been inextricably linked with our religious freedom as a people. It has protected both the freedom to worship and the freedom not to believe,” Sessions said in a statement. “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.”

Employment. In particular, principles Number 16 through 19 of the religious liberty guidance are directed towards employment. In No. 16, the DOJ references Title VII’s prohibition for covered employers against discriminating against individuals based on their religion, but it points out that religious employers have protections for religious hiring decisions. No. 17 discusses employers’ religious accommodation requirements under federal law. No. 18 cites with approval the Clinton Guidelines on Religious Exercise and Religious Expression in the Federal Workplace, published in 1997 by President Bill Clinton. And No. 19, broadly and without exception, states that “religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.”

License to discriminate. The Human Rights Campaign reacted immediately, calling EO 13798 a “sweeping license to discriminate” that puts millions of LGBTQ Americans at risk of discrimination. HRC also said that the DOJ’s interpretation of existing federal law is inconsistent with the way federal courts have interpreted these issues and is subject to legal challenges.

“Today the Trump-Pence administration launched an all-out assault on LGBTQ people, women, and other minority communities by unleashing a sweeping license to discriminate,” HRC President Chad Griffin said in a statement. “This blatant attempt to further Donald Trump’s cynical and hateful agenda will enable systematic, government-wide discrimination that will have a devastating impact on LGBTQ people and their families.”

HRC’s preliminary analysis of the new guidance carrying out Trump’s EO shows that LGBTQ people and women will be at risk in some of the following ways:

  • A Social Security Administration employee could refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse.
  • A federal contractor could refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts.
  • Organizations that had previously been prohibited from requiring all of their employees from following the tenets of the organization’s faith could now possibly discriminate against LGBTQ people in the provision of benefits and overall employment status.
  • Agencies receiving federal funding, and even their individual staff members, could refuse to provide services to LGBTQ children in crisis, or to place adoptive or foster children with a same-sex couple or transgender couple simply because of who they are.

Attack on freedom and fairness. The Equality Federation echoed similar concerns. Executive Director Rebecca Isaacs said, “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.”

“Freedom of religion is one of our nation’s most fundamental values, which is why it is already strongly protected by the First Amendment to the Constitution,” Isaacs observed. “But the freedom of religion does not give people the right to impose their beliefs on others, to harm others, or to discriminate.”

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