The Department of Justice has released sweeping guidance on religious liberty protections, opening the door for government-approved discrimination against LGBT people, women, and others. The breadth of the guidance is stunning—from the administration’s point of view, it’s legal for nearly any business to fire someone or deny a person services based on religious objections.
In the guidance, Attorney General Jeff Session directs federal agencies to give full deference to all people or organizations, allowing them to “act or abstain from action” in accordance with religious beliefs. Under this approach, for example, Kim Davis refusing to issue a marriage certificate for gay couples would be seen as legal. The 25-page directive extends to businesses and schools, and says religious liberty should be accommodated “to the greatest extent practicable and permitted by law.”
“Under this guidance, federal agencies, government employees, contractors and grantees can take federal funds and discriminate at will, and the federal government will do nothing to stop it,” Winnie Stachelberg, an executive vice president at the liberal Center for American Progress, said on a conference call. She explains different agencies will be effectively run religious freedom tests on their actions. “There will be numerous interpretations of what that religious freedom test would be and how the license to discrimination would be applied across particular agencies, grants and contracts,” Stachelberg says.
Stachelberg and other opponents of the guidance point out that while the administration might take that position, the law hasn’t changed and nondiscrimination protections still apply. “The one silver lining here is that none of this is binding on the courts, so people should continue to keep suing companies that discriminate…even if the government won’t do anything,” she said.
Louise Melling, a deputy legal director with the ACLU, says the DOJ guidance interprets federal law prohibiting employment discrimination to “permit employers to fire anyone whose beliefs or conduct are inconsistent with the teachings of their faith.” She characterizes the guidance as a “big expansion” from the previous understanding of religious liberty, which, except for rare circumstances, has not allowed for businesses and employers to discriminate against people based on religious beliefs—though the Supreme Court is about to hear a major case on whether a business broke the law when it denied service to a same-sex couple based on religious objections.
The new guidance also states that “organizations do not give up their religious-liberty protections by providing or receiving social services, education, or health care” and opponents fear health care providers will be permitted to turn away patients based on religious objections.
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.” Sessions’ memo, however, is only the first step in the process. Now it will fall on individual parts of the federal government to interpret how to execute this new guidance. If federal agencies develop policies that permit discrimination, Taylor says that Lambda Legal and other groups will file lawsuit challenging those changes.
You can read the guidance below: