Sessions: DOJ guidance on ‘religious freedom’ on the way

By : Chris Johnson of the Washington Blade, courtesy of the National LGBT Media Association
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Guidance from the U.S. Justice Department assuring protections for “religious freedom” — which is considered code among conservatives to mean anti-LGBT discrimination — is coming shortly, U.S. Attorney General Jeff Sessions said this week.

Sessions said the guidance is coming soon during closed-door remarks before a “religious freedom” summit in Orange County, Calif., hosted by Alliance Defending Freedom, an anti-LGBT legal group. Although the Justice Department refused to make the speech public, the Federalist, a conservative website, published a copy Thursday.

The attorney general said the guidance would come “soon” in the aftermath of President Trump signing in May an executive order in favor of “religious freedom” that, among other things, directed Sessions to issue the guidance.

In his remarks, Sessions didn’t get into significant detail about the guidance, but said it would “help agencies follow the Religious Freedom Restoration Act.” That law, which prohibits the government from substantially burdening a person’s exercise of religion, was passed in 1993 on a bipartisan basis, but has been cited as legal basis for allowing anti-LGBT discrimination.

“Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason,” Sessions said. “That is a demanding standard, and it’s the law of the land. We will follow it just as faithfully as we follow every other federal law. If we’re going to ensure that religious liberty is adequately protected and our country remains free, then we must ensure that RFRA is followed.”

If Sessions issues guidance that enables anti-LGBT discrimination under the Religious Freedom Restoration Act, it would fulfill a prediction made by LGBT rights supporters after Trump signed his “religious freedom” order.

Although Trump’s executive order defied expectations that it would specifically undermine LGBT rights, many observers, such as those at the Human Rights Campaign, pointed to the provision empowering Sessions to issue “religious freedom” guidance and predicted it would be trouble.

This provision, HRC predicted at the time, could lead to guidance undermining President Obama’s 2011 guidance assuring hospital visitation rights for same-sex partners or the Department of Housing & Urban Development rule assuring LGBT non-discrimination in government-sponsored housing. Additionally, such guidance could allow federal workers at the Social Security Administration or other federal agencies to refuse to process the paperwork for same-sex couples, according to HRC.

The nature of the guidance the Justice Department might issue on religious freedom remains to be seen. A Justice Department spokesperson confirmed the accuracy of the remarks on the Federalist’s website, but declined to provide further information about the guidance.

Sessions’ remarks at the Alliance Defending Freedom event were holistic in their approach to religious freedom, honoring not only the Founders for enshrining religious freedom in the U.S. Constitution, but civil rights leaders like Martin Luther King, Jr., who based their movement on religion.

“And of course it was faith that inspired Martin Luther King Jr. to march and strive to make this country stronger yet,” Sessions said. “His was a religious movement. The faith that truth would overcome. He said that we ‘must not seek to solve the problem’ of segregation merely for political reasons, but ‘in the final analysis, we must get rid of segregation because it is sinful.’ It undermined the promise, as he described it, that ‘each individual has certain basic rights that are neither derived from nor conferred by the state…they are gifts from the hands of the Almighty God.’”

Nonetheless, speaking at an event for an organization that has cast LGBT rights as an infringement upon “religious freedom,” Sessions underscored the exercise of faith “will be treated neither as an afterthought nor as a problem to be managed.”

“The federal government will actively find ways to accommodate people of all faiths,” Sessions said. “The protections enshrined in the Constitution and our laws protect all Americans, including when we work together, speak in the public square, and when we interact with our government. We don’t waive our constitutional rights when we participate fully in public life and civic society.”

Chad Griffin, president of the Human Rights Campaign, said on Twitter any guidance the Justice Department issues on “religious freedom” shouldn’t compromise LGBT rights.

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