U.S. Issues Religious Freedom Memo Giving Leeway in Hiring

Updated on
  • Attorney general says religion should be broadly accommodated
  • Positions bolster religious conservatives who backed Trump

Attorney General Jeff Sessions advised federal agencies to follow 20 principles of religious freedom, including a recognition that religious employers can discriminate in hiring, as he elaborated on an executive order President Donald Trump signed in May.

The guidance issued by Sessions on Friday says “religious organizations may choose to employ only persons whose beliefs and conduct are consistent with the organizations’ religious precepts.” A gay rights advocate said it “put a thumb on the scale” in favor of those who want to use religious liberty arguments to discriminate.

“This is an attempt by the administration to pressure agencies to overlook concerns about discrimination against vulnerable communities,” said Camilla Taylor, senior counsel at Lambda Legal.

Sessions set out 20 principles based on the Justice Department’s interpretation of existing laws, such as the 1993 Religious Freedom Restoration Act. The document supports the positions of religious and social conservatives who were a key part of Trump’s support in last year’s election.

“President Trump is demonstrating his commitment to undoing the anti-faith policies of the previous administration and restoring true religious freedom,” Tony Perkins, president of one such group, the Family Research Council, said in a statement after the Sessions memo was issued.

‘Reasonably Accommodated’

In the memorandum issued to all federal agencies, Sessions wrote: “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. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting and programming.”

While the memo refers to protecting the rights of religious employers, it doesn’t specify whether it’s referring only to religious institutions such as churches and their charities or to businesses whose owners hold religious views against hiring certain people or baking a cake for a gay wedding, an issue now before the Supreme Court.

Read More: Religious Objections to Gay Marriage Get U.S. High Court Hearing

But the guidance says that for-profit companies have some religious protections, saying the Religious Freedom Restoration Act “extends not just to individuals, but also to organizations, associations and at least some for-profit corporations.”

The move came as the Trump administration proposed giving employers broad flexibility to decide against covering birth control in their health insurance plans, weakening a requirement put in place by President Barack Obama’s administration in its interpretation of the Affordable Care Act.

Contraceptive Coverage

Sessions’ memo says the Department of Health and Human Services may not “second-guess the determination of a religious employer that providing contraceptive coverage to its employees would make the employer complicit in wrongdoing.”

Read More: Trump Rule Limits Obamacare’s Birth Control Coverage Rule

The Obama administration required employers to cover birth control and an array of other preventive health services with no out-of-pocket costs. The administration had allowed some religious organizations to opt out of the contraceptive requirement, but the religious groups said that the exemption process didn’t go far enough.

Trump’s executive order also directed the Internal Revenue Service to use its discretion in enforcing a decades-old law known as the Johnson Amendment, which prevents religious leaders from endorsing candidates from the pulpit while retaining their nonprofit status. Religious leaders have long complained that the provision restricts their free speech.

“We are giving our churches their voices back,” Trump said at the time in a Rose Garden ceremony. “No one should be censoring sermons or targeting pastors.”

The Sessions memo says the IRS may not enforce the Johnson Amendment “against a religious non-profit organization under circumstances in which it would not enforce the amendment against a secular non-profit organization.”

General Principles

The principles issued Friday are general, with statements such as “the free exercise of religion includes the right to act or not to act in accordance with one’s religious beliefs” and the “government may not interfere with the autonomy of a religious organization.”

“This guidance does not resolve any specific cases; it offers guidance on existing protections for religious liberty in federal law,” the Justice Department said in a statement. “The guidance does not authorize anyone to discriminate on the basis of race, ethnicity, national origin, sex, sexual orientation, or gender identity in violation of federal law or change existing federal and state protections.”

— With assistance by Zachary Tracer, Anna Edney, Toluse Olorunnipa, and Greg Stohr

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