AG Jeff Sessions issues broad guidelines to protect religious objections to public policy

WASHINGTON — The Justice Department issued new guidance across the government Friday aimed at giving religious groups and individuals broad protections to express their beliefs when they come into conflict with government regulations, including when making hiring decisions.

Attorney General Jeff Sessions' directive fleshes out an executive order issued by President Trump earlier this year that had targeted in particular a provision of tax law prohibiting churches from direct involvement in political campaigns, a point that has chafed some evangelical activists.

But Sessions’ action, long anticipated since Trump’s announcement in May, also staked out religious protections for hiring decisions that could threaten those whose sexual orientation conflicts with employers' faith.

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"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," the attorney general wrote. "To the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government action, including employment, contracting and programming."

For example, the directive says the Internal Revenue Service may not enforce the so-called Johnson Amendment — which prohibits non-profits from intervening in a political campaign on behalf of a candidate — in cases involving a religious non-profit when the same activity would not be enforced against a secular organization.

The guidance also reiterates that religious non-profits may not be excluded from federal grant programs for activities unrelated to their worship, and explicitly states that private businesses are entitled to the same conscience protections as churches.

“Our freedom as citizens has always been inextricably linked with our religious freedom as a people," Sessions said. "It has protected both the freedom to worship and the freedom not to believe. Every American has a right to believe, worship, and exercise their faith. The protections for this right, enshrined in our Constitution and laws, serve to declare and protect this important part of our heritage."

The Justice Department guidance was issued as the Trump administration announced that it would expand the religious exemption for employers who object to providing insurance coverage for birth control because of their religious or moral beliefs.

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The Sessions guidance offered strong support for the move, saying that the Department of Health and Human Services should not "second guess the determination of a religious employer that providing contraceptive care to employees would make the employers compliant in wrongdoing."

Tony Perkins, president of the conservative Family Research Council, lauded both actions Friday.

"After eight years of the federal government's relentless assault on the First Amendment, the Trump administration has taken concrete steps today that will once again erect a bulwark of protection around American's first freedom — religious freedom," Perkins said.

The Justice directive comes just days after a separate Sessions memo concluded that the federal civil rights law does not protect transgender people from discrimination in the workplace. The action reverses an Obama administration policy issued nearly three years ago.

According to Sessions' memo, the prohibition on sex discrimination "encompasses discrimination between men and women but does not encompass discrimination based on gender identity, per se, including transgender status."

The directive effectively rolls back 2014 guidance provided by then-Attorney General Eric Holder, which stated that the "most straightforward reading" of the civil rights law also guards transgender workers from discrimination.

Kris Hayashi, executive director of the Transgender Law Center, characterized Sessions' transgender directive and the religious freedom memo as "a license to discriminate."

“Just one day after announcing the government would refuse to uphold the law when it comes to protecting transgender workers, the attorney general today issued alarming guidance promoting state-sanctioned, taxpayer-funded discrimination against women, transgender people, and many other members of our communities," Hayashi said.  

"Make no mistake: today’s guidance is 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."

University of Richmond law professor Carl Tobias said civil rights groups "are right to be concerned."

"When you take into account the transgender directive and this (religious freedom) memo, there seems to be a pattern here" that could lead to possible discrimination, Tobias said. "I can see why LGBT employees and others could be concerned about employers in this context." 

But Richard Garnett, a law professor at the University of Notre Dame who writes on First Amendment and religious freedom issues, said Sessions memo Friday represents "a significant commitment to a robust understanding of religious freedom."

"The attorney general stated clearly, in keeping with longstanding American tradition, that religious freedom is a fundamental human right and not merely a policy preference," Garnett said.