- The Washington Times - Friday, October 6, 2017

The Justice Department issued legal guidance across the federal government Friday that outlines how agencies should interpret religious freedom protections — a broad directive that supporters say allows individuals to live and work in a manner consistent with their religion.

But critics say the guidance amounts to a sweeping license to discriminate that could have a broad impact on the rights of women and LGBT individuals.

The memo, issued by Attorney General Jeff Sessions, does not resolve any specific ongoing litigation, but it will serve as a baseline for how the Justice Department will interpret current federal laws such as the Religious Freedom Restoration Act (RFRA) and Title VII of the Civil Rights Act of 1964.

Among 20 principles outlined in the memo, the Justice Department finds that RFRA protections extend not just to individuals but also to organizations, associations and at least some for-profit companies and that the government is not permitted to “second-guess the reasonableness of a religious belief.”

As an example, the memo states that the Department of Health and Human Services cannot second-guess “the determination of a religious employer that providing contraceptive coverage to its employees would make the employer complicit in wrongdoing in violation of the organization’s religious precepts.”

The DOJ memo was issued the same day that the Trump administration announced it would allow employers to claim religious or moral objections in order to be exempt from providing birth control coverage in their health insurance plans.

“Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place,” Mr. Sessions wrote in the 25-page memo. “Except in the narrowest of circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance should be reasonably accommodated in all government activity, including employment, contracting and programming.”

DOJ documents outlining the memo say agencies to should rely on the guidance to protect religious liberties “in all aspects of their work, including as employers, rule-makers, adjudicators, contract- and grant-makers, and program administrators.”

Among other principles outlined in the memo, the Justice Department instructs that religious employers are entitled to employ those whose beliefs and actions align with their own religious beliefs, and also that “Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government.”

That will protect Americans’ freedom to live in a manner consistent with their faith without fear of government punishment, said Michael Farris, the president of the religious legal group Alliance Defending Freedom.

“This guidance will help protect families like the Vander Boons in Michigan who were threatened with the effective closure of their family-run business for simply expressing a religious point of view on marriage that differed from that of the federal government,” said Mr. Farris, referencing the owners of a meatpacking plant who were told by a United States Department of Agriculture inspector to remove from the company break room an article defending marriage as between one man and one woman.

But civil liberties groups say the memo lays groundwork for discriminatory action by government contractors, religious groups, and businesses.

Legal experts have described possible discriminatory scenarios ranging from Social Security Administration employee who refuses to accept or process spousal benefits for a same-sex couple, to a religiously-affiliated school that fires a single mother.

“There is no religious exemption from basic human dignity,” said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights. “Federal agencies, government contractors, and grant recipients should not be permitted to discriminate simply by citing a religious belief for doing so.”

Civil rights groups say women, and gay or transgender individuals could likely face the worst discrimination under the the guidance.

“Today the Trump-Pence administration launched an all-out assault on LGBTQ people, women, and other minority communities by unleashing a sweeping license to discriminate,” said Human Rights Campaign president Chad Griffin. “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.”

Kris Hayashi, executive director of the Transgender Law Center, said the guidance is particularly devastating for transgender people.

“This license-to-discriminate memo invites illegal discrimination on a chilling new scale and attempts to open the door for carving certain communities, including transgender people, out of basic protections guaranteed by law,” he said.

A separate memo issued by the DOJ instructs prosecutors to consider the 20 principles and how they would be applied in any current litigation as well as how they might inform legal opinions or advice issued to other agencies.

Louise Melling, deputy legal director of the American Civil Liberties Union, said while the guidance does not change any laws or enact new rules, it forecasts the stance the Trump administration will take in ongoing or future litigation.

In one case headed to the Supreme Court, the Justice Department has already made one such a legal interpretation.

In a brief filed last month, the Justice Department sided with a Christian baker who refused to make a wedding cake for a same-sex couple. DOJ lawyers said trying to force Jack Phillips, the Colorado baker, to make a cake for someone against his beliefs violates his rights.

“It’s a very expansive understanding of religious liberties,” Ms. Melling said. “Religious liberty doesn’t come with the right to harm others or discriminate, and this kind of flips that on its head.”

• Andrea Noble can be reached at anoble@washingtontimes.com.

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