It is not getting the kind of attention (initially at least) as the related but much narrower HHS rule expanding “religious liberty” exemptions from the Affordable Care Act’s contraception-coverage mandate. But Attorney General Jeff Sessions today released a 25-page memo offering “guidance” to federal agencies and prosecutors concerning the dos and don’ts of giving religious groups, organizations, businesses, and individuals leeway in enforcing discrimination laws, setting grant conditions, and generally interacting with them.
The “guidance” is based on Trump’s May executive order vaguely but expansively offering to protect people of faith and their various associations and institutions from interference from the federal government, and also on the administration’s distinctive interpretations of the First Amendment, the Clinton-era Religious Freedom Restoration Act, and civil-rights laws. Some of the instructions are common-sense and noncontroversial (e.g., don’t enforce rules governing nonprofits against religious organizations while letting their secular counterparts skate). But the relentless message is that whenever federal agents in the course of their activities collide with claims that they conflict with religious tenets, they should back off. One of its 20 “principles of religious liberty” bluntly tells federal entities that civil-rights laws protecting people of faith from employment discrimination on religious grounds must be strictly enforced — but they do not apply to religious employers themselves.
While much of the “guidance” is negative in nature, it also imposes some affirmative obligations:
One portion of the guidance directs lawyers in the Justice Department to scrutinize all proposed federal regulations, saying that the department won’t concur in the issuance of any rule that conflicts with the religious guidance.
It is reasonably clear the significance of this Justice Department memo will depend on how it is implemented. Still, those concerned about the civil liberties of people some religious folk would like to discriminate against are alarmed. That’s particularly true of LGBTQ folk. The Human Rights Campaign calls the new “guidance” a “sweeping license to discriminate.” It argues that the administration is trying to protect discriminatory behavior by federal employees, federal contractors, federal grantees, and organizations previously expected to follow federal policies — all in one action.
To be clear, the Justice Department memo does not set or change federal law. But like prior federal government efforts in the Obama administration to set policies for treatment of undocumented workers by law enforcement personnel, it gives actual or potential law breakers a great deal of assurance that they will be treated with respect, if not actual favor, when they run afoul of laws and policies.
And that may be the great irony surrounding this subject. Attorney General Jeff Sessions — the stern, moralistic, legalistic opponent of criminal-justice reform and “amnesty” for illegal immigrants — is offering something very much like what the Obama administration offered to Dreamers and people languishing in prison for nonviolent drug offenses: some sympathy, some mercy, and, at the margins, some breathing space. It goes a bit too far to say the Trump administration is offering “amnesty” for religiously based discrimination against other American citizens, but that’s certainly the direction in which they appear to be going. The applause of those religious leaders eager to discriminate will be telling. It will suggest that those responsible for enforcing federal anti-discrimination laws have changed sides.