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Justice Department Announces Strong Defense For Religious Freedom

08 October 2017
Justice Department Announces Strong Defense For Religious Freedom

On Friday Attorney General Jeff Sessions issued new instructions to federal agencies giving government workers, federal contractors, and others legal permission to ignore federal bans on discrimination against women and LGBT people.

Attorney General Jeff Sessions announced federal law does not protect transgender employees from workplace discrimination.

ADF has repeatedly disputed the Southern Poverty Law Center's "hate group" designation as "a lie" and criticized news organizations, including ABC News, who make reference to it. "He tells me this is just the first step in a multi-step process, and he tells me President Trump will protect religious freedom for all Americans". It could also have an impact on pending legal disputes across the country.

However, portions of the memo seem to set things up for people to use religious freedom as a basis for LGBTI discrimination. "It also encompasses religious observance and practice". Religious freedom proponents have argued for this definition avidly in recent years, amid fears that the idea was being eroded, especially as the phrase "freedom of worship" often replaced "freedom of religion" in the Obama administration. That order, which was narrower than expected, focused on allowing religious organizations and leaders to engage in political speech without penalty and weakened the Obamacare contraception order.

Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with the government. Further, the guidance says RFRA doesn't permit the federal government to second-guess a religious belief and asserts the strict scrutiny standard under the law is "exceptionally demanding".

Under the 1993 law, the federal government must not substantially burden one's deeply-held religious beliefs unless it establishes that to do so is in its "compelling interest" and is the "least-restrictive means" of fulfilling that interest. Even the conservative US Court of Appeals for the 11th Circuit, which hears appeals from Georgia, Florida, and Sessions' own Alabama, has concluded that discrimination against a transgender persons is illegal sex discrimination.

It's worth noting that this is a return to ideas widely held just 25 years ago: when RFRA was enacted in 1993, it has almost unanimous support from both parties and was signed into law by Bill Clinton.

It states as an example that a Lutheran school may choose to employ only practicing Lutherans, only practicing Christians or only those who adhere to a code of conduct consistent with the precepts of the Lutheran community sponsoring the school. It also says the government can not enforce the so-called Johnson Amendment, which threatens to strip tax-exempt status from religious groups that engaged in political advocacy.

This is significant because certain Catholic colleges did not receive religious exemptions from the contraceptive mandate, Mercer said, yet the government should have honored their religious objections.

"We've never had anything this far-reaching before", he said, noting that the guidance puts religious freedom on the level of freedom of speech.

The legal guidelines dramatically broaden the scope of what the government will define as "religious freedom" to include health care, civil rights, and even disaster relief.

Rick Garnett, a law professor at University of Notre Dame, said in some respects, the guidance served to "summarize, re-state, and endorse existing and established Supreme Court doctrine", but in others, it took "strong religious-freedom stands on questions that are contested". The church had initially been turned away because of its religious affiliation.

Sessions forcefully criticized the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, "horrifying" Shepard's mother, who subsequently spoke out against his nomination to the office of attorney general.