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Discrimination Is the Big Winner in the Justice Department's New Religious Guidelines
08 October 2017, 12:49 | Katrina Lee
On Friday morning the administration followed through on two promises made in President Donald Trump's May 4 executive order on religious liberty - relief from the HHS mandate for religious and conscientious objectors, and a Department of Justice guidance to federal agencies on implementing religious freedom protections found in existing federal law.
"This guidance is part of a tradition of administrations helping to educate the public and officials regarding the laws that protect religious liberty, such as President Clinton's pioneering guidance protecting religious liberty in public schools".
The guidance says the government can not unduly burden people or certain businesses from practicing their faith, noting, "The free exercise of religion includes the right to act or abstain from action in accordance with one's religious beliefs".
Under the new policy, a claim of a violation of religious freedom would be enough to override concerns for the civil rights of LGBT people and anti-discrimination protections for women and others.
In a statement on Friday, Vanita Gupta, president and CEO of The Leadership Council on Civil and Human Rights, argued that the Sessions directive is "yet another mean-spirited attack against the LGBTQ community, people of color, and other minorities".
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.
"Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place", Sessions wrote. The government's compelling interest in enforcing these laws should mean the businesses lose their arguments - but the Department of Justice guidance suggests that the interest in ending discrimination against LGBT people isn't actually all that important.
A separate memo issued by the DOJ instructs prosecutors to consider the 20 principles and how they would be applied in any current litigation as well as how they might inform legal opinions or advice issued to other agencies. "This license to discriminate is a stark reminder that states must do all they can to protect LGBTQ people by passing comprehensive nondiscrimination laws".
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Elsewhere, the memo asserts that religious groups "generally may not be required to alter their religious character to participate in a government program".
"Our freedom as citizens has always been inextricably linked with our religious freedom as a people", Sessions said.
"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.
Title VII of the Civil Rights Act of 1964, which outlaws gender discrimination against job-seekers, was extended to include trans folks during the Obama administration.
The new DOJ memo comes amid a flurry of policy moves by the Trump administration this week that will disproportionately affect women and the LGBTQ community, including a rollback of the federal birth control mandate and a reversal of government policy that protected transgender workers from discrimination. The AP calls it "an order that undercuts protections for LGBT people". The principle was also at play earlier this year, when the Supreme Court ruled in favor of a Lutheran church that was seeking to make safety improvements on its playground through a state reimbursement program.
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. "The White House says the guidance "does not authorize anyone to discriminate" - and Lambda Legal will make sure it doesn't". Sessions explained while Title VII prohibits "sex-stereotypes", insofar as that sort of sex-based consideration causes disparate treatment between men and women, Title VII is not properly construed to proscribe employment practices that take into account the sex of employees, but do not impose different burdens on similarly situated members of each sex.
To put it simply: Religion is being used as an excuse for discrimination.
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