Attorney General Jeff Sessions issued sweeping guidance to executive branch agencies Friday on the Justice Department’s interpretation of how the government should respect religious freedom, triggering an immediate backlash from civil liberties groups who asserted the nation’s top law enforcement officer was trying to offer a license for discrimination.
In a memorandum titled “Federal Law Protections for Religious Liberty,” Sessions articulated 20 sweeping principles about religious freedom and what that means for the U.S. government — among them that freedom of religion extends to people and organizations; that religious employers are allowed to hire only those whose conduct is consistent with their beliefs; and that grants can’t require religious organizations to change their character.
Though the principles are lofty — and some of them in no way objectionable — they could have a broad negative impact, permitting religious groups to impinge on the rights of LGBT people and others, said civil liberties advocates, including the American Civil Liberties Union, Equality Federation and others. The announcement, though, was welcomed by groups like the Becket Fund for Religious Liberty, the Alliance Defending Freedom and the Family Research Council.
“Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law,” Sessions wrote. “Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming.”
The most immediate effect seemed to be on the Affordable Care Act’s contraception coverage mandate. On Friday, the Trump administration issued a rule — which the ACLU said it would sue over, but groups like the U.S. Conference of Catholic Bishops said they support — allowing a much broader group of employers and insurers to exempt themselves from covering contraceptives, such as birth control pills, on religious or moral grounds.
Sessions had offered some legal justification for that in the memo. He wrote that requiring employers to provide insurance coverage of contraceptives in violation of their religious belief “substantially burdens” their free practice of religion.
“This is a direct attack on women’s rights,” said Vanita Gupta, president and chief executive of the Leadership Conference on Civil and Human Rights. “The Trump administration is using the guise of religious liberty to carry out their ideological agenda to deprive women of basic reproductive health care.”
And civil liberties groups said there could be other effects. The principle allowing religious employers to hire only those whose conduct is consistent with their beliefs, for example, might allow a religious school to fire a teacher who had a child out of wedlock or a man who wed another man, said Louise Melling, deputy legal director at the ACLU.
“It is countenancing discrimination,” Melling said. “It is countenancing exercises of faith in a way that will harm other individuals.”
Senior Justice Department officials said the guidance was not meant to be a policy position, but rather, an interpretation of existing federal law. They said it was not meant to address any current legal dispute, nor was it meant to condone discrimination.
A 2014 memorandum from President Barack Obama barring federal contractors from discriminating on the basis of sexual orientation remains in place, Justice Department officials said.
Family Research Council President Tony Perkins praised the memo, saying that under the Obama administration, agencies lost a proper understanding of religious freedom.
“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,” he said in a statement.
The guidance was generated in response to President Trump’s executive order that was supposed to make it easier for churches to engage in politics without losing their tax-exempt status. Sessions’s memo said the IRS should not treat religious organizations different from secular nonprofits.
Trump’s order is being challenged in court, though some religious activists and experts have said it was more symbolic than practically meaningful.
Rick Garnett, a law professor at University of Notre Dame, said in some respects, the guidance served to “summarize, restate, and endorse existing and established Supreme Court doctrine,” but in others, it took “strong religious-freedom stands on questions that are contested.”
Religious schools, hospitals and other organizations would probably welcome the memo, as it would increase their ability to compete for federal grants, Garnett said. Analysts said the Justice Department seemed to be interpreting broadly a recent Supreme Court ruling that said efforts at separating church and state go too far when they deny religious institutions access to government grants meant for a secular purpose. Some analysts think that the decision was written narrowly to address only the issue of getting a grant to purchase recycled tires to resurface a playground.
The Justice Department under Sessions and Trump has changed course significantly from the Obama administration, especially on issues of civil rights and protections for LGBT people.
For example, Sessions told Justice Department employees this week that a major federal civil rights law barring employers from sex discrimination does not offer protection to transgender people. The Justice Department also sided with a Colorado cake baker who would not bake a wedding cake for a same-sex couple.
Rebecca Isaacs, executive director of the Equality Federation, said the latest memo was a “an attack on the values of freedom and fairness that make this nation great.”
“Freedom of religion is one of our nation’s most fundamental values, which is why it is already strongly protected by the First Amendment to the Constitution,” Isaacs said. “But the freedom of religion does not give people the right to impose their beliefs on others, to harm others, or to discriminate.”
Others, though, said concerns might be overblown.
“Most of what it actually says is bland and general,” said Doug Laycock, a professor at University of Virginia Law School. “Whether it is significant depends on the follow-through and on how it is interpreted.”
Robert Barnes and Sandhya Somashekhar contributed to this report.