In a memorandum addressed to all DOJ department heads and United States attorneys, Attorney General Jeff Session expressed his agenda to implement federal Law protection for religious freedom.
Sessions issued the guidance as a result of an executive order President Donald Trump signed in May empowering the attorney general to issue religious freedom guidance.
But the guidance is so sweeping that experts on religious liberty suggested Friday that it could prompt a slew of lawsuits against the government.
Further, the guidance says RFRA doesn't permit the federal government to second-guess a religious belief and asserts the strict scrutiny standard under the law is "exceptionally demanding".
A background memo accompanying the new guidance insists the move "does not authorize anyone to discriminate on the basis of race, ethnicity, national origin, sex, sexual orientation, or gender identity in violation of federal law or change existing federal and state protections". They are an open invitation to discrimination against women, members of the LGBT population, and others, all in the name of "religious freedom". The Trump administration pitches its rules weakening the birth control coverage mandate as policies that give voice to a purportedly "silenced" group.
"Our country has a long history of protecting religious liberty", General Counsel for First Liberty Hiram Sasser said in a written statement.
The policy would also allow religious freedom to be used as a basis for discrimination against women and other minorities.
Camilla Taylor, senior legal counsel at Lambda Legal, describes the guidance as an "effort to pressure agencies into valuing religious liberties over protections from discrimination".
Rick Garnett, a law professor at University of Notre Dame, said in some respects, the guidance served to "summarize, re-state, and endorse existing and established Supreme Court doctrine", but in others, it took "strong religious-freedom stands on questions that are contested". Enacted in 1993, RFRA is one of the primary legislative pillars upon which religious freedom arguments have rested in the last two decades. A nonprofit group with a federal contract could refuse to provide services to LGBT people, even in emergencies, and would not be in danger of losing its contract.
"It is countenancing discrimination", said Louise Melling, deputy legal director at the ACLU.
Sessions' assertion that "every American has a right to believe, worship, and exercise their faith" is, on its face, an innocuous-sounding statement with which anyone who possesses a pocket Constitution would have a tough time disagreeing. Sessions and the Department of Justice interpret it differently, taking "sex" to be discrimination between men and women. "And it is another step toward fulfilling President Trump's promise to protect a host of Christian colleges, the Little Sisters of the Poor, and others from having to choose between violating their consciences and paying crippling fines to the IRS", said Michael Farris, president of Alliance Defending Freedom (ADF).
But the justice department, led by Sessions, argued that the 1964 Civil Rights Act - which outlaws discrimination based on a number of characteristics - does not provide any protections for gay people, despite outlawing sex-based discrimination. But critics say the guidance could undermine protections for the LGBT community. In Employment Division vs Smith, the Supreme Court ruled that the individuals were not exempt from Oregon's narcotics laws. The SPLC said ADF "works to develop "religious liberty" legislation and case law that will allow the denial of good and services to LGBT people on the basis of relgion" and "has supported the recminalization of homosexuality in the USA and criminalization overseas". "A license to discriminate goes against our core American values and I fear that the guidance the Justice Department issued today is not created to help agencies comply with the law, but rather to give them greater leeway to condone discrimination against LGBTQ people, women and others".
"Nothing could be more un-American and unholy than using religion to justify harm and discrimination to others".
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President Donald Trump gathers with Congressional Republicans in the Rose Garden of the White House on May 4, 2017. The ACLU has filed a lawsuit , saying the new rule promotes discrimination against women.
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