Law

Left Loses its Mind Over Jeff Sessions Memo That Brazenly Restates Existing Law

This country has a long history of protections for freedom of conscience.

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Jeff Sessions
Gage Skidmore / Flickr

The Human Rights Campaign (HRC) is angrily condemning a memo released today by Attorney General Jeff Sessions that it describes as "an all-out assault on LGBTQ people" creating "a sweeping 'license to discriminate'" in furtherance of President Donald Trump's "cynical and hateful agenda." The memo does this via provocative language such as "freedom of religion is a fundamental right of paramount importance" and "government may not interfere with the autonomy of a religious organization" by, for example, forcing an Orthodox yeshiva to accept female rabbinical students.

Don't get me wrong—we're not exactly fans of Sessions here at Reason. But today's memo shouldn't make your list of reasons to dislike the man, who is much more fittingly criticized for being a lover of asset forfeiture and a drug warrior extraordinaire.

Haters of the religious liberty memo seem to believe (or, perhaps more accurately, want you to believe) that it establishes a new right for businesses and government agencies to turn people away on the basis of sexual orientation or gender identity. They should be comforted, then, by the revelation that virtually everything in the document is merely a restating of existing law and Supreme Court precedent.

For example, the notion that government doesn't get to second-guess the "reasonableness" of something a person believes her faith requires of her goes back at least to the 1981 Thomas v. Review Board decision (in which a majority of the Court held that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection") and mirrors James Madison's famous assertion that "the religion then of every man must be left to the conviction and conscience of every man."

The principle that Americans don't forfeit their rights when they enter into the public square was recently upheld in 2014's Hobby Lobby ruling, while the principle that government can't dictate a church's hiring practices (at least when it comes to "ministerial" positions) was unanimously reaffirmed in 2012's Hosanna-Tabor.

The tenet that a law has to meet "strict scrutiny" if it substantially burdens someone's exercise of faith is lifted verbatim from the 1993 Religious Freedom Restoration Act that was signed with great fanfare by then–President Bill Clinton.

The bullet point noting that freedom of religion applies to organizations as well as to individuals might seem radical, but it's literally rooted in Title 1, Chapter 1, Section 1 of the U.S. Code, which holds that "the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies."

Employers have been prohibited from discriminating against workers or job applicants on the basis of religion since the passage of the Civil Rights Act of 1964, so that's not new either. (Although I've argued against that policy as an infringement of business owners' economic liberty and freedom of conscience, it is the law of the land as of now.)

As for the idea that Washington cannot treat a religious organization differently than it does a secular one, that emerged in response to a series of attempts from the 19th century—motivated, it's widely accepted, by anti-Catholic animus—to disqualify faith-based groups from receiving government grant money and other public benefits. Such laws, known as "Blaine amendments," are on the books in a number of states, but the federal effort to pass one failed. More recently, Presidents George W. Bush and Barack Obama have worked to "level the playing field," in the White House's language, ensuring equal access to grants and benefits regardless of an organization's religious affiliation, so long as public funds aren't used for activities like worship and proselytization.

Some states and localities have, in the last few years, enacted legislation making it illegal for a housing or business proprietor to turn people away on the basis of sexual orientation or gender identity. It is these efforts that represent a departure from the status quo by overruling private citizens' conscience rights. Today's memo from the attorney general does little more than reiterate what federal law has been for years.

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  1. The question today is this: are these people feeling actual concern and fear at this point, or are we just going through the motions to keep the perpetual outrage machine perpetual? Aren’t they worried the boy will eventually get eaten by a wolf?

    1. Ummm…I think a lot of gay people have reason to be worried when the attorney general wants to make it legal to discriminate against them. It not just discrimination in housing, obtaining service from businesses or employment but what about being denied emergency medical care b/c the EMT is anti-gay or the Dr. hates gay people?

      What year is this? What country are we in? Scary stuff.

      1. What examples do you have of gay people being denied emergency medical services?

        I presume you have such examples because there are so many backward states without “gay-friendly” laws.

        1. Read this in full:

          http://www.slate.com/blogs/out…..tions.html

          1. Did you link the right article?

          2. Just to be clear, based on the article, you’re saying that chopping off a guy’s dick because he thinks he’s a she, is an emergency medical service?

            And so is abortion, even elective abortion?

            And the decision says that even if one hospital has a conscientious objection to chopping off the confused guy’s dick, the government can pay for the surgery elsewhere.

            1. Here’s the best that Slate could come up with, in denouncing a court’s decision that the government can’t force hospitals to do abortions or chop off confused people’s dicks:

              “Indeed, by the terms of his ruling, the government can’t require doctors and insurance companies to treat or cover anything they believe to be ‘evil.’ Instead, the government must continually step in to insure unpopular patients and help them find a doctor who will deign to treat them. This system would completely upend medical practice in the United States, legalizing prejudice-based refusal of service and placing the burden on patients to find a doctor and insurance company who will provide the treatment they need.”

              So a patient who wants an abortion or a dick-ectomy must take the initiative to find a doctor who’s down with it?

              That isn’t the sort of example I was asking for.

              1. All of that, but elective assisted suicide is still evil. GTFO here with slate articles.

              2. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

                This is what I do… http://www.onlinecareer10.com

          3. We must not deny special ‘rights’ for special ‘people’.

            I liked things a lot better when we weren’t using government money to cater to gays and the insane, and I had mediocre health insurance that was affordable. Rather than sub-mediocre health insurance for several times as much.

      2. Did you miss the part of the article which points out that such discrimination is, and has been, legal? Yet no one seems to be going out of their way to discriminate in this way.

        Maybe we can survive without everything being either prohibited or mandatory.

        1. Maybe we can survive without everything being either prohibited or mandatory.

          Perchance.

        2. Bill, but that would mean admitting that Americans simply are not the evil racists and bigots certain people want us (or need us) to be for their ideology to become something other than rhetoric.

        3. There are 20-plus U.S. states that currently have laws protecting LGBT people from discrimination. Sessions wants to override the laws in those states and make discrimination legal nationwide. Discrimination has not been legal in states such as CA or MA or NY. Its mostly red states are supporters of discrimination.

          1. kalio|10.6.17 @ 8:56PM|#
            “There are 20-plus U.S. states that currently have laws protecting LGBT people from discrimination. Sessions wants to override the laws in those states and make discrimination legal nationwide. Discrimination has not been legal in states such as CA or MA or NY. Its mostly red states are supporters of discrimination.”

            You’ve already shown yourself to be a bullshitter, above.
            Cites or stuff it.

          2. Barnard College in New York will not accept students who identify as male. How is that legal if New York outlaws gender identity based discrimination?

          3. As reason.con already stated, no one here is a sessions fan. However, you forcing discrimination against one group to eliminate perceived discrimination isn’t a winning argument.

          4. Not wanting to outlaw something = supporting it? So you want outlaw everything you don’t support?

      3. I’m gay, and thank you very much, but I’m very supportive of religious rights. Hasn’t anyone considered that Sessions is reaffirming the idea of separation of church and state. Why would any gay person be opposed to that? What goes around comes around–freedom is a two-way street. I know, these are slogans from a far away time and place, but I still abide by them.

        1. Soooo, your not going to force the Catholic baker to cater your abortion?

          1. No, and if that’s the only example of bigotry in the US today then there’s virtually none.

            1. Yep. Actual bigotry is about 99 percent less than claimed bigotry, in the US.

      4. “kalio”. Hmm. I think you misspelled “idiot”.

      5. A country where you can’t force people to do things they don’t want to do? Yeah, it’s terrible.

  2. From skimming the memo, I think the headline-grabbing part ought to be on p. 5, item #15 – even if a regulation benefits third parties it can still be subject to a RFRA challenge.

    So for instance, If (responding to pressure from the Pork Council) Congress passes a statute requiring every restaurant to have pork on its menu and sell BBQ sandwiches at “reasonable prices” to customers, the fact that third parties (the restaurant’s customers) benefit from the statute doesn’t affect the RFRA analysis – if a Jewish restaurant owner objects on religious grounds to serving pork, the government must still prove that compulsory pork is the least restrictive means of achieving a compelling government interest, otherwise the restaurant owner wins.

    1. And yes, to anticipate your point, such statutes ought to be recognized as violating the 9th and 10th Amendments as well as the 1st, but the courts aren’t that enlightened yet.

  3. Also, check the paragraph labelled “Agencies as Employer” on p. 7 – another headline-grabber if reporters actually read (or skim) documents.

  4. WHAT ARE THEY SUPPOSED TO DO?? NOT LOSE THEIR MINDS???

    1. I’m wondering how those in the Left can lose their minds when there’s no direct evidence that they even had a mind in the first place.

  5. I don’t understand why this article says that this is just restating an existing law. In almost half of the states in this country, it is illegal to discriminate against gay people whether in housing or employment or business.

    The way I understand it, Sessions wants to override those laws in those states w/ his Federal discrimination law that makes it legal to be a bigot nationwide.

    Also, I imagine there will be many issues as to whether someone is truly acting out of “true religious beliefs” or simply b/c they see this as a legal way to discriminate. Or what if a person is mistakenly perceived as gay and is discriminated against? I smell lots of lawsuits.

    This is pretty scary stuff. Are gas chambers next??

    1. “Are gas chambers next??”

      Not sure if serious.

      1. If liberals don’t get their way, it’s gas chambers next.

    2. Ok, let’s try this: an old lady wants to rent out a room in her house. Should it be illegal for her to not rent to gay person? Or: the YMCA wants to be able to assure parents that men they hire to work with boys are not gay. Illegal?
      Otherwise, as a commenter above requested, show us some case where gays are discriminated against today.

      1. If the gay hairdresser goes to the baker next door and says “I’m getting gay married in six months, can you make me a cake?” the baker is free to go “No, I don’t make cakes for gay weddings, get out of here.” If next week the baker goes to the hairdresser to get his haircut, and the hairdresser goes “Get your bigoted ass out of my shop!”, the hairdresser can be sued for discriminating against the baker.

        The right calls this “freedom of association”.

        1. I don’t know cases where the latter has happened, but I am completely willing to say that the latter is bullshit. That is not true freedom of association, and it is an abuse that should be fought against.

          1. it is an abuse that should be fought against

            I’m sure Jeff Sessions will get right on it. Because he believes so strongly about freedom of association.

            1. I don’t believe he is, what’s your point?

            2. So a bunch of conjecture about shit that hasn’t happened. Thanks for your lack contribution, once again.

              If that were to be challenged in your hypothetical, do you think anyone would rally behind that? And more to the point, where could a hetero male ever get his hair cut without stylists that might be gay? I know we outlawed barber shops years ago, but surely the market came up with a new invention.

          2. I don’t know cases where the latter has happened

            Fired Tenn. pharmacist sues Walgreens alleging religious bias

            A Tennessee pharmacist and a Baptist church deacon who lost his job after an ongoing dispute over selling Plan B contraception has sued his former bosses, claiming he was fired because of his religious beliefs.

            1. Did he win the case? I couldn’t find any follow-up using Google, so perhaps it was settled?

            2. I’m going to reaffirm my belief that the company can choose who does and does not work for them before I saw this. What even happened here? He got fired for buying a drug then tossing them?

              1. If there’s a straw around, a lefty will grab it!

            3. Can a woman working at a Wellness Center file a sexual harassment complaint because patients keep talking about their reproductive health?

        2. But here we’d call that the market at work, and maybe some of us would invest in a hair salon and bakery that caters to anyone to scoop up all the paying customers that morons and bigots turn away.

          1. According to stormy the only proper way to solve anything is with the loving baton beatings issued by the state.

          2. Put the proposition to any leftist that we simply do away with public accommodation altogether, and they’ll balk at it. They don’t want thorough freedom of association. They want public accommodation laws that protect the right people and not the wrong people. That seems to be the core objection.

        3. Okay, in the first place, no REAL man goes to a hairdresser.

          Secondly, the baker is free to find another BARBER, same as the homosexual is free to find another baker.

          THAT is “freedom of association”.

        4. What do you call it Stormy?

        5. Please cite your source.

        6. The hairdresser can refuse service for any reason. He can’t be sued for not cutting the hair of the asshole who insulted him.

          Thanks for playing, please collect your consolation prize as you leave.

    3. Imagine the horror of using the 14th Amendment to protect the religious liberty of all US citizens….

      1. WHAT’S NEXT?? GAS CHAMBERS????!?!

    4. by mentioning gas chambers, you proved it’s not serious. Such bullshit.

  6. “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”

    “Of course, plenty of so-called ‘religious beliefs’ are obviously bullshit attempts to get away with stuff the Government doesn’t like.”

    1. As opposed to legitimate attempts to get away with stuff the Government doesn’t like?

    2. Hey, whatever works. The more loopholes the better.

      1. To be clear, I’m not opposed to either. You say “bullshit”, I say “legitimate”. As you noted, whatever works.

  7. The Left Wing seems to have a need to see villains where there aren’t any. I’m gay, and I really don’t see how Trump is anti-gay or “racist.” I mean if Trump is the modern-day version of a Hitler, then doesn’t that say more about how far to the Left the left has gotten than how bigoted people are? Trump has never done or said anything to prove he is a big bad meanie. The only thing I can think of that irks the Left is that he’s unpologetically American, which to the far left makes someone a hateful bigot, and that’s all they need. I’m staggered by what’s happening in this country. How do people become so irrational and zealous? I don’t know what to say. As a gay man who has expressed these opinions in lots of different company, well… let’s just say it explains why I’m on the computer on a Friday night writing this.

    1. You should be out at a bar or nightclub instead of sitting on your computer arguing about how the Chief Executive himself is not a homophobe (maybe) so that excuses the any number of people he’s appointed that assuredly are. It’s a better way to hook up.

      1. I guess I have just as hard time stomaching their rants as they do mine. If I have to endure another “death to America!” salute and a secular like prayer wishing for full force communism during a gay pride party, I’ll puke. And yes, this is what many people say in those wonderful inner city white enclaves. A glass of merlot raised to the end of the Constitution. I wish I could write that believably, but I can’t.

        1. People with those beliefs don’t belong in America. Like AmSoc (Stalin).

    2. I’m bisexual, and I’ve had similar problems with left-wing dogma at LGBT social events. Bill Clinton was governor of a state that prohibited sodomy when the Democrats nominated him for president. People who gave him a pass on that will criticize Trump, when Trump is better than Clinton was towards the LGBT community.

      1. Even well after Obama was elected, he did nothing about federal discrimination against homosexuals in hiring practices. Yet, he was this Messiah for gays. It’s a dream world they live in.

    3. We need a lot more of you commenting here and a lot less of the fools like Tony.

  8. It’s ok, guys. No matter what Trump does you guys will be plaintively arguing that we should vote for Republicans again– murderous Korean War Part Dumb aside.

    1. “murderous Korean War Part Dumb aside.”

      Shitbag, do you have a rule that you cannot post without some mendacity or other?
      Or are you just abysmally stupid?

    2. No matter how corrupt and marxist the next DNC nominee will be, AmSoc will vote for them.

  9. Tax the churches!

    1. Tax everybody and every organization equally. If we eliminated tax exempt status, it would be a lot easier to get a reasonable level of taxation.

  10. Funny how you left out an discussion of sections 16 on, where he outlines how “religious” employers get different rules than everyone else, so that while they’re free to discriminate against you, it’s illegal for you to discriminate against them.

    It also creates a sort of heckler’s veto where your business is hostage to the whims of your most religious employee. Own a bakery that’s fine with gay weddings? Only if all your employees are, because if they refuse to make it you can’t fire them for refusing to do their job.

    1. It also creates a sort of heckler’s veto where your business is hostage to the whims of your most religious employee. Own a bakery that’s fine with gay weddings? Only if all your employees are, because if they refuse to make it you can’t fire them for refusing to do their job.

      If so, that’s bad, and you and I can both argue for better freedom of association. They should be able to fire that person.

      1. you and I can both argue for better freedom of association

        But nothing will come of that argument, so we’ll continue on in a status quo of some people having freedom of association and others not having it.

        1. I don’t quite grasp your point there. Are you saying we shouldn’t talk about it because it won’t happen?

          1. The point is she doesn’t want to admit that she doesn’t actually favor freedom of association. She’s accusing others (groundlessly) of being hypocrites in their defense of a principle she opposes, couched in the rationale that “it will never happen anyway, so why bother supporting it.”

      2. Perhaps, but that is not current law. See the EEOC ruling regarding truck drivers tefusing to transport alcohol.

    2. “…it’s illegal for you to discriminate against them….”

      You just made that up, didn’t you?
      Bullshit.

    3. That’s actually addressed directly three paragraphs up from the bottom. I say I’m against that law. It’s still not a departure from the status quo.

    4. That’s actually addressed directly three paragraphs up from the bottom. I say I’m against that law. It’s still not a departure from the status quo.

      1. Even the writers get posts attacked by squirrels.

    5. You mean like how we’re hostages to the whims of the most handicapped, the most pruidish, the most gender-fluid, the most trigger-able, and every other horse-shit thing the govt has forced down on business-owners via creating special rights to sue? Welcome to the slippery-slope morons. Religion, ridiculous as it may be, was in the constitution first. No amount of tantrums and hyperbole will leapfrog other special rights above it.

  11. Good to hear pastafarians will be protected.

    1. Ramen

  12. “For example, the notion that government doesn’t get to second-guess the “reasonableness” of something a person believes her faith requires of her goes back at least to the 1981 Thomas v. Review Board decision . . .

    Are you saying that the First Amendment doesn’t just protect smart religious beliefs. It protects stupid religious beliefs, too?!

    That doesn’t make any sense.

    Next thing you know, you’ll be arguing that the First Amendment doesn’t only protect smart speech; it also protects the stupid things people say–and obviously that doesn’t make any sense . . .

    If the stupid things people believe and say are protected, that would mean they could just go around believing and saying whatever they wanted with impunity–unless they used their religion or speech to violate someone’s rights.

    How are people supposed to know what to believe if everyone can just go around believing whatever they want? That would be . . . anarchy.

    1. The Stephen Foster statue was not designed as a racial symbol. That doesn’t matter though. Too many people believe it is a racial symbol, therefore the statue has to be moved, for now.

    2. It was hard not to notice that while critics of the statue were both black and white, young and old, male and female, all its defenders were older white men.

      This is how we should decide votes from now on. Diversocracy.

  13. As proven in this thread, progressives simply have to have the government force their beliefs on the entire population, because they would have to actually convince people. And that’s not going to happen.

  14. In one corner…SJWs who want to remove New York City’s Christopher Columbus statue.

    In the other corner…“over 100 lawyers and judges from the Confederation of Italian Americans”.

    1. I can’t confirm the report that they plan to charge DeBlasio with statue-tory rape.

      1. No, it’s not rape, they have Droit de Sculptor.

        1. Both of these comments are the kind of eye narrowing content that keeps bringing me back.

    2. Is it racist against Italians to dislike Christopher Columbus but not Mohammed?

  15. ATTENTION Catherine Mangu Ward. I just heard a radio host on EWTN say the libertarianim is incompatible with Cathlicism. He was talking about Aynd Rand. Yes the selfish me first ok, the atheism ok, objectivism ok. But then he concluded with the jaw dropper for me, cuz this guy is really smart, Catholocism is incompatible with libertarianism.

    1. Randian Objectivism probably is incompatible with Catholicism.

      Libertarianism, broadly construed, is probably amenable with Catholicism.

      Devil is always in the details.

    2. Any idea who it was who said that?

      1. Stephanie Slade attributed something of the sort to the Pope iv Rome sth in a refreshing and delightful Reason Teevee episode–but said the source was iffy. But Non-iffy sources confirm il Papa’s denunciation of all things libertarian. Search WordPress for “Mysticism and Fascism”

  16. Reason writers should be viewed withing a very fucking
    tight framework of libertarian mores most fucking
    scribes WILL miserably fail at and as such will
    fall deep into the nasty shitty pit of black commie
    mud their ilk all plays within… notice all the toxic
    hate that middle-finger flames the internet across
    the Slates, WSJ’s, and Fucking Shit-eating middle-finger
    Bezos Dick Cum Servant Writers on that rag he owns
    …. When Bezos cums his entire investment writes
    what their brains, freaks, dicks, faces, minds, and cunts
    deep throated… When Bezos cums… YOU FUCKING
    PERFORM YOU SHITTY factory of a gazillion weinsteins

    1. You’re drunk, AG.

      1. AC, that is.

  17. A field of golden mountains
    arose along the path of
    powerful voices
    and these shrill screens
    grew through the ages
    way when you all
    got gray and even
    beyond your car fleets
    and cop motorcycles
    when your ears and arms
    rest under the low
    ceiling… you will
    melt under a strange future, boy

  18. 4chan is irrelevant and anon is
    a shit piece unless it
    screws down the hinges
    and it has and angel wings do
    escape the clutches
    of empires
    I can only hope
    as the world dies
    that chains grow muscles
    and brains unleash wings

  19. So are all the rants passing as comments here actually in support of the rights of the sexual minorities, or simply against the rights of the religious?
    Or just political wonderings?

    1. There is no inalienable right to force other people to interact with you. Didn’t you get that memo from your ex-girlfriend?

      1. Not yet. She uses email, not memos.
        And she has not chosen to become ‘ex’ for over 40 years. (speaking of religious rituals)

        1. Wow, you’ve only had one girlfriend your entire life?

  20. The George Waffen Bush Executive Order slipping pelf, boodle and gubmint jobs to superstitious lynch mobs–like Herbert Hoover’s similar pandering to the Anti-Saloon League, the Wizened Christian Temperance Union and Methodist White Terror–sure did a number on the economy.

  21. The George Waffen Bush Executive Order slipping pelf, boodle and gubmint jobs to superstitious lynch mobs–like Herbert Hoover’s similar pandering to the Anti-Saloon League, the Wizened Christian Temperance Union and Methodist White Terror–sure did a number on the economy.

  22. Jeff Sessions is an old fart with old outdate ideas on what society is. You should be free to fuck whoever you like and marry whoever you like. I’m libertarian with a little “l” , but I’m also a pragmatist. We are not going to wholesale change the system. Anyone who thinks we are is as fucking delusional as the far right and far left. Laws that protect individual rights are currently a necessity. Laws that limit free speech need to be thrown out every chance we get, usually through the judiciary. Sessions is wrong on crime, drugs, free speech, individual rights, term limits, and I get tired of naming what he is correct on. Probably damn near nothing is he correct on. He’s an idiot serving under an idiot.

    1. And yet, on balance unquestionably better than Hillary Clinton would’ve been.

  23. If your reaction is to criticize Sessions on this, you aren’t a libertarian just a team blue poseur.

    You should be allowed to have any or no healthcare for your employees. You should be allowed to discriminate against anyone for any or no reason. If you think the state has any business telling anyone anything about what they must think or say or do, then you are a statist.

    Yes the Civil Rights act was an unconstitutional abrogation of freedom of association.

    Yes, almost all discrimination by businesses in the south was government mandated in the seperate but equal days. Business owners did NOT want to pay for a second lunch counter and set of toilets.

    Somehow we’re so screwed up that you have to bake the cake even if you think that’s sending you to hell, and you have to pay for birth control even if you think that’s sending you to hell. Religious freedom should be absolute, not because we love religion, but because it’s a type of freedom and the state hates it, and if we stood up for religious freedom we could form a cocaine church and do all the coke we wanted and there would be nothing they could do about it. All it means is that, THE HORROR!, we would have to let Catholic nuns do what they want and not dictate to them.

    JFC

    1. But if we let Catholic nuns do what they want, then they’re no good to us…

  24. Left Loses its Mind Over Jeff Sessions Memo That Brazenly Restates Existing Law – Hit & Run : Reason.comis the best post by imo for pc Please visit imo app imo app snaptube for pc snaptube app

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