Department of Justice

Sessions Releases Guidance on Protecting Religious Freedom; LGBT Groups Fear 'Permission to Discriminate'

Mostly, memo reiterates what religious freedom protections mean.


Pedro Portal/TNS/Newscom

Today, as President Donald Trump's administration is announcing that employers with religious concerns will have an easier time getting exemptions from the birth control mandate, Attorney General Jeff Sessions has released a lengthy memo describing the Justice Department's approach to religious freedom.

The timing is most likely not a coincidence. Sessions' 25-page memo discusses concerns about when the federal government may or may not impose mandates that violate the religious beliefs of businesses, and one of his points is bluntly titled "Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government." It references the Hobby Lobby Supreme Court case rejecting contraception mandates.

The memo itself does not specifically reference gay or transgender people, but given that its instructions are about how Department of Justice agencies should take religious freedom issues in mind when enforcing laws, contracting, and distributing grants, there was an immediate concern from LGBT activist groups and allies that this was the "permission to discriminate" they've suspected the administration had been planning all along, but had not yet come.

Chad Griffin, president of the Human Rights Campaign, certainly didn't hold back in blasting the potential impact on gay and transgender people: "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. Donald Trump and Mike Pence have proven they will stop at nothing to target the LGBTQ community and drag our nation backwards. We will fight them every step of the way."

It's actually not terribly clear, though, that this memo makes much of a difference in how the current Justice Department will tackle LGBT discrimination issues because of how it is already tackling LGBT issues.

Understand, the Justice Department under Sessions is already reversing many of the positions it held under President Barack Obama. The Justice Department is now taking the position that federal civil rights laws do not include gay and transgender discrimination under the aegis of sex-based discrimination. The Trump administration has already retracted the guidance from the Obama administration mandating that schools accommodate transgender students in use of public restrooms and locker rooms. And the Justice Department in an upcoming Supreme Court case has taken the side of a baker in Colorado who declined to make a wedding cake for a same-sex couple (Disclosure: so has the Reason Foundation).

The Human Rights Campaign worries about some additional outcomes, though: That government officials themselves will be able to refuse to do their jobs when it comes to dealing with gay or transgender people (see: Kim Davis); and that federal contractors and faith-based organizations like hospitals would be able to discriminate against LGBT people and be able to refuse to provide services even in a crisis. So forget the wedding cakes: They're concerned about people getting turned away from hospitals or homeless shelters.

I don't want to dismiss the possibility of that happening, but it's important to note that religious freedom laws like the Religious Freedom Restoration Act do not just give blanket permission for people to violate the law by wrapping themselves in some holy scripture. Sessions knows that, and part of his memo explains what government officials have to show if they're going to try to overcome a person's religious objections:

Justice Dept.

So if the government can make a case that it has a compelling interest (like protecting public safety) and that it's taking the least restrictive means to do so it can require people to obey a law that hospitals not turn away gay or transgender people, for example.

The unanswerable concern, though, is whether a Sessions-run Justice Department actually would act in cases of emergencies or take steps to make sure that government agencies themselves treat LGBT people equally as the law demands when it comes to areas like marriage rights and benefits. If, indeed, a federal government employee refuses to process Social Security claims from somebody in a same-sex marriage, what happens? Clearly, given that same-sex marriages are legally recognized by the federal government, it cannot just refuse claims. Well, it could try, but I predict the courts are not interested in reconsidering the Supreme Court's ruling on gay marriage recognition and the government would lose.

In that respect, we'll have to see what the Justice Department actually does. Sessions has been careful to frame his reversals of Obama administrations' positions as different interpretations of the law not as anti-gay or anti-transgender posturing. If the Justice Department gives cover to government employees refusing to do their jobs or treat LGBT people equally under the law, it's going to be harder to explain as a legal interpretation.

Read Sessions' full memo here.

NEXT: Deregulation Faces Setbacks, Economy Sheds 33,000 Jobs, and FEMA Rebuilds Puerto Rico: P.M. Links

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. And here I was just being told that the wonderful Trumpies are just looking after the poor First Amendment and aren't being cynical theocrats at all.

    Wanna bet the feds won't consider my belief that straight white men aren't welcome in my shoe shop to be "sincerely held"?

    1. Is there some aspect of selling shoes that endorses heterosexuality, or whiteness, or maleness?

        1. 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...

      1. What does it mean to endorse those things? "I permit white males to live--I suppose"?

        1. I am trying to figure out why you would be excluding that is any way analogous to stuff that is actually happening.

        2. Tony, you understand that, essentially, I permit you to live, right? It's the astounding tolerance and patience of good Americans, like me, that permits communist bottom feeding trash like you to live to see another sunrise. Because we allow it. When the day comes that enough of us say to ourselves "those fucking progtards have gone too far, enough is enough", you will all quickly be wiped off the math.

          So count your blessings. You should feel truly grateful we tolerate you progs enough to allow you to continuously steal our oxygen. In fact, feel free to thank me, and the other posters here.

        3. No Tony, I won't bake you a cake with Gay Chairman Mao on it.

    2. And I was being told that ignoring irrational nonsense like this is perfectly ok.

      1. Hey, Tony should be able to ban white males from his store.

        1. I don't know what Tony does there, but I'm guessing it involves throwing out the old shoes guys leave behind. He probably takes me home and sniffs them.

          1. "Them" home. I wouldn't go home with Tony even after a truck full of GHB.

    3. So, they'll let your college discriminate against straight white males, even though it's illegal to do so against other groups. They'll let (hell, encourage) your company to discriminate against them in hiring, "for the sake of diversity."

  2. But then how will the acronym-power types harass bakers? This is a disaster for petty tyrants. Sad!

  3. "They're concerned about people getting turned away from hospitals or homeless shelters."

    Which happened ALL THE TIME before we had laws protecting gays.

    Or do you mean turning away the "partners" of patients or clients? Now, *there* is an actual real-world concern, for those who make it their business to worry about such things.

    But where exactly are the examples of gay people being denied AIDS or cancer treatment because the hospital doesn't like gay people? Or refused a night at the YMCA because of their presumed sexual preference?

    1. Spent a lot of time being gay in America?

      1. Gay people were denied cancer and AIDS treatment, and turned away from the YMCA?

        1. Uh yeah. Way to keep the standards low, though. "At least we're not Egypt!"

          1. You'll get a hernia from moving those goalposts. I was literally replying to this from the article: ""[Gay-rights activists are] concerned about people getting turned away from hospitals or homeless shelters.""

            1. Tony keeps his goalposts on a forklift for easy moving. Texting and driving also interferes with his thinking and posts.

          2. Tony, if you want me to bake you a gay cake, you must expect there to be poo poo in it.

        2. I don't think gays have any problems with representation at the YMCA. They just ne3 to watch out for incredible hulks.

      2. I have! And I lived in the Midwest for a good portion as well. I don't remember being denied any essentials growing up. Me and my gay friends/family must have missed that. Dang

        1. You don't seem to realize that coercing service from others is essential to your self-esteem. You must be whatever the gay version of an Uncle Tom is. /sarc

          1. Being a gay libertarian is a sad and lonely existence......

            And what the heck would a gay Uncle Tom be? A second cousin Nancy?

            1. Bruce Wayne. Think of what an inspiration he could be to gays if he didn't elaborately disguise himself and his "youthful ward" so as to stay in the closet (or Batcave).

              1. In the TV series, he literally designed a machine that changes his clothes for him. Putting that much effort into clothes...tell me that's not gay.

                1. ...and you never hear about the Wayne Foundation donating to Lambda Legal, it's always orphanages and shit like that.

      3. "I have LIVED EXPERIENCE!!! Facts mean nothing next to LIVED EXPERIENCE!"

  4. "If, indeed, a federal government employee refuses to process Social Security claims from somebody in a same-sex marriage, what happens?"

    Let's see, what's the least restrictive means of achieving the supposedly compelling government interest of processing S. S. claims from gay couples? Presumably, assigning the case to a bureaucrat who believes in following the rules wherever they lead, or who is in favor of "gay rights," leaving the backward and unwoke employees to deal with the straight applicants (who are the vast majority of applicants, of course, in case you thought the unwoke bureaucrats won't have any work left).

  5. Progressive-activist homos, dykes and trannies aren't "pro-LGBT rights", they're anti-Christian bigots.

  6. The Justice Department announced it's not going to force people to offer services they have a moral opposition to providing, and worse that heterosexual individuals won't be forced to associate with homosexuals if they don't want to.

    Today is a terrible day for freedom folks! The Libertarian Moment is... It's burst into flames! Oh my! It's burst into flames and it's crashing as the Trump Administration implements this terrific policy. And all the folks agree that this is terrible; this is the worst of the worst catastrophes in the world! Oh the humanity!
    --Herb Morrison, probably

  7. "In this corner, wearing the blue and red striped trunks, compelling government interest. In this corner, wearing a hijab and thumping a Bible, strongly-held religious belief. ...."

    1. What the progs have flushed down the memory hole is the history of their support for the principles of the Religious Freedom Restoration Acts - that is, requiring the government to show that stomping on religious practice is the least restrictive means of achieving a compelling government interest.

      When it was a question of people refusing service in the U. S. military, or ersatz "Native American" religions using peyote in their ceremonies, or Rastafarians smoking the ganja in *their* services, progs couldn't get enough of religious freedom (and I support religious freedom in those situations, too).

      Hillary Clinton's husband signed a federal Religious Freedom Restoration Act so harsh that conservative judges thought it a violation of states' rights.

      1. Here's a more or less honest prog discussing the issue in 2014

        "How Bill Clinton's near-sightedness led to the Hobby Lobby decision

        "In 1993, Bill Clinton signed the Religious Freedom Restoration Act. The law represented the kind of consensus that even then was rare: it passed on a voice vote in the House of Representatives and 97-3 in the Senate. A resolution praising cute kittens probably couldn't have gotten as much support. And yet the legislation was a serious mistake...

        "...while the sympathy for Smith and Black [the peyote Indians] was understandable, Scalia's opinion in Smith was sound and RFRA was a mistake....

        "[Congress invited] messiness and unworkability...when it passed RFRA."

      2. Peyote was banned when Dry Hope Herbert Hoover was president-elect, back in 1929. That was the year confiscatory prohibition caused investment to flee the stock market.

  8. 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. Ehhh, I dunno. I'm pretty sure you could

      1. Be a decent human being and let your bible thumper employee work on a different cake


      2. Fire them for general failure to perform their duties. I don't believe private companies have to abide by such nuanced silliness for firing people. But maybe I don't know how stupid America is nowadays on that...

    2. So let's get rid of public accommodation laws altogether.

      1. And that would be my vote! Forced association is bullshit.

      2. Or at least restore the previous understanding that a biz like cakery is not a public accommodation. (Probably not a bread bakery either.)

    3. Financing the formation of a mystical bigot 5th column in government sure got George Waffen Bush reelected.

  9. I believe that you get back what you put out and since I live in a place with laws that protect me from discrimination in employment based upon my sexual orientation, do what you want out there in middle america, I dont live there and dont want to. And I won't spend my money there, and as you can see in North Carolina, when you start down the path of being mean you lose big time.

    Eventually there will be protection of the law of my equal rights, you are right this does not change anything except to make me more determined to help defeat you in the next elections.

    1. Defeat who? Libertarians? Gary Johnson got around 5% of the vote. And what equal rights do you not have? Or is it some kind of special rights where you get to force people to do your bidding because you're part of stem darling class to the progtards?

    2. Someone ask TracyH if a right is a moral claim to freedom of action. A lot of people are taught in government schools that a right is an acquired entitlement to someone else's money, effort or goods.

  10. Sessions Releases Guidance on Protecting Religious Freedom; LGBT Groups Fear 'Permission to Discriminate' - Hit & Run : Reason.comis the best post by imo for pc Please visit imo app imo app snaptube for pc snaptube app

Please to post comments

Comments are closed.