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Justice Department issues new ‘religious freedom’ memo that invites anti-LGBTQ discrimination

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Attorney General Jeff Sessions issued extensive guidance Friday morning regarding “Protections for Religious Liberty” throughout the federal government. The document scrupulously avoids mentioning the LGBTQ community by name but it is undeniably the latest in a string of actions targeting LGBTQ rights.

Among the 20 “key principles” in Sessions’ memo are several assurances that the government will not penalize religious organizations for their religious beliefs, including their hiring practices or other aspects of their religious practice. Principle 2 states, “The free exercise of religion includes the right to act or not to act in accordance with one’s religious beliefs,” and that reference to not acting is the exact argument that has been used in countless cases where businesses and organizations have refused to serve LGBTQ people because of their religious beliefs.

Other points reinforce this. For example, Principle 6 states, “Government may not exclude religious individuals or entities based on their religion,” and Principle 20 states, “Generally, the federal government may not condition federal grants or contracts on the religious organization altering its religious character, beliefs, or activities.” The language in these principles strongly resembles language used to protect child-care and adoption agencies from losing governmental grants if they refuse to serve same-sex couples.

The guidance also protects businesses that would discriminate against same-sex couples through its interpretation of the Religious Freedom Restoration Act (RFRA). Principle 11 ensures that RFRA extends to businesses as well as individuals, consistent with the Supreme Court’s Hobby Lobby ruling. Principles 13-15 then outline how RFRA could be used to justify discrimination:

  • 13. A governmental action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.
  • 14. Under RFRA, any government action that would substantially burden religious freedom is held to an exceptionally demanding standard.
  • 15. RFRA applies even where a religious adherent seeks an exemption from a requirement to confer benefits on third parties.

Principle 15 is a direct reference to the controversy regarding the state-level RFRA that Indiana passedand then watered down after a massive backlash — in 2015. Previous RFRA laws referred only to protections citizens enjoy when the government was directly burdening their religious practice, but Indiana’s law was designed to offer “religious freedom” as a justification in cases between two citizens, thus protecting those who would discriminate because of their religious beliefs. Stipulating that RFRA applies to disputes related to conferring benefits to others is nothing short of the same license to discriminate from Indiana’s legislation.

Sessions’ guidance is a follow-up to an executive order President Trump issued in May regarding “religious freedom.” That order, which was narrower than expected, focused on allowing religious organizations and leaders to engage in political speech without penalty and weakened the Obamacare contraception order. It also included, however, the vague instruction that, “In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”

Back in the early weeks of the administration, a drafted executive order leaked that would have created a religious license to discriminate for all adoption and child-care agencies and would have explicitly allowed individuals and organizations to discriminate on the basis of sexual orientation and gender identity. Though the Trump administration did not dispute the authenticity of the draft, it said it had “no plans” to take any action on it.

When news dropped that the May executive order was coming, it was initially thought that it would be the same order that leaked in February. Some conservatives were upset that it turned out to be so narrow instead, but Fox News’ Todd Starnes, a very vocal opponent of LGBTQ equality, was not at all concerned. “I spoke to a conservative leader late last night instrumental in crafting the order,” he said at the time. “He tells me this is just the first step in a multi-step process, and he tells me President Trump will protect religious freedom for all Americans.” The new guidance confirms that the narrow order would eventually lead to the broader discriminatory scope of the original leaked order.

The DOJ’s new guidance is only the latest in a litany of actions the Trump administration — and particularly Sessions’ DOJ — has taken to undermine LGBTQ equality, including:

This is a breaking news story and will be updated.

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