Law & Government

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.


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.