New legal guidance could affect health care, gay rights, political action by churches
Attorney General Jeff Sessions issued government-wide legal guidance Friday that urges sweeping protection for religious freedom and could impact a series of pending policy decisions involving health care, LGBT rights and even disaster relief.
Sessions billed the 25-page memo directed to all federal agencies as a response to an executive order President Donald Trump signed in May, promoting efforts to promote “religious liberty.”
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That order triggered a major showdown within the administration as religious and social conservatives pressed for treatment that could essentially allow them to ignore anti-discrimination requirements, particularly in the area of sexual orientation, while more moderate forces warned that upending existing protections would trigger an uproar that could derail other administration priorities.
The new Justice Department guidance takes a muscular view of religious freedom rights, but officials insisted that the document is a neutral description of existing law and not an effort to weigh in on particular policy issues.
“Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place,” Sessions wrote. “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.”
The legal analysis was unveiled as the Trump administration is considering or pursuing a series of moves that could broaden the rights of the religious, including allowing churches more latitude to enter political campaigns without jeopardizing their tax exemptions and permitting religious institutions to receive more types of disaster relief funds.
The administration also announced Friday that businesses of all sizes with religious or moral objections to providing contraception coverage or other preventative services under Obamacare will be allowed to opt out that requirement.
Officials have also debated whether to revoke or alter a policy banning federal contractors from discriminating on the basis of sexual orientation. Trump opted against such a move in May, but LGBT rights advocates remain on guard against such a step.
Those discussions and the new legal guidance trudge into an area that has proved searing in the past for one particular high-ranking Trump administration official: Vice President Mike Pence.
As governor of Indiana in 2015, Pence signed a religious freedom law that appeared to give businesses broad rights to deny service to gays and lesbians and perhaps others. An uproar followed, with many business leaders warning that the move could harm the state economically. Within days he reversed himself and endorsed a revised measure designed to assuage concerns about discrimination.
A Justice Department official who briefed reporters on the new legal guidance insisted that it does not amount to a license to discriminate.
“It doesn’t legalize discrimination at all,” said the official, who spoke on condition of anonymity.
However, the legal memo suggests that the government’s legal authority to forbid racial discrimination may not be as strong as its authority to target other forms of discrimination, such as bias against women or LGBT individuals.
“The government may be able to meet that [legal] standard with respect to race discrimination…but may not be able to with respect to other forms of discrimination,” Sessions’ memo says.
Critics said the guidance could result in LGBT individuals, women or others facing discrimination in federal programs.
“Religious freedom is a fundamental American value,” said Maggie Garrett of Americans United for Separation of Church and State. “It doesn’t mean you can use religion as an excuse to discriminate or harm others. That’s exactly what these guidelines set up.”
While the Justice Department policy repeatedly discusses the need to treat religious organizations equally with secular ones, Garrett said that discussion essentially ignores the fact that the Constitution’s ban on establishment of religion means the government can’t pay to build churches or mosques.
“There is the Establishment Clause which is fundamental to religious freedom,” she said. “If it’s taxpayer money being used to build a church, what’s more establishing of religion than that? And what about the rights of other taxpayers not to pay for another person’s religion?”
Prominent religious conservatives hailed Sessions’ memo and the simultaneous announcement that employers were free to drop Obamacare’s contraception requirement.
“President Trump is demonstrating his commitment to undoing the anti-faith policies of the previous administration and restoring true religious freedom,” said Tony Perkins of the Family Research Council.
“President Trump and the Department of Justice are putting federal government agencies on notice: you will not only respect the freedom of every American to believe but live according to those beliefs,” Perkins added. “As President Trump continues to follow through on his promises on these core issues, he will continue to have the support of social conservatives on his policy initiatives.”
The new Justice Department guidance also holds out the possibility that all corporations, not just small or closely-held family businesses, may have religious freedom rights that must be accommodated under federal law.
Protection granted by the Religious Freedom Restoration Act “extends not just to individuals, but also to organizations, associations and at least some for-profit corporations,” the attorney general’s memo says.
The guidance is vague on one point important to many law enforcement agencies: the degree to which religious affiliation can be used for profiling or targeting of potential suspects. During the presidential campaign, Trump promised a ban on Muslim entry into the U.S. and appeared to single out that religion as a particular danger.
The new Justice Department memo appears to advocate religious freedom protections so robust that they could impact authorities’ ability to target a violent religious sect or a particular ideology with religious components.
Former federal terrorism prosecutor Andy McCarthy said the Trump administration’s legal positions could complicate or doom efforts to focus on Muslims with extreme views, such as a desire to impose Sharia law.
“If [that] is just another form of Islam, and must be treated as a religion like any other interpretation of Islam (or any other religious creed), then screening and other forms of preemptive surveillance become difficult if not impossible under the constitutional guidelines that the Justice Department seeks to fortify,” McCarthy said.
A Justice official said that the guidance doesn’t attempt to resolve such questions.
“It makes the point that you can not discriminatorily enforce federal law but it does not weigh in on how that would apply with respect to a particular situation…with law enforcement,” said the official.
Sessions also issued a separate directive Friday that seeks to impose closer scrutiny of the religious freedom impact of rules issued by agencies across the federal government. The memo requires that any time a proposed federal agency action is sent to the Justice Department by the Office of Management and Budget for review, Justice’s Office of Legal Policy and Civil Rights Division will vet the move for any potential adverse impact on religious freedom protections.