October 10, 2017
Every time you turn around, the Trump administration is doing another awful thing—so much so that it is almost impossible to keep track.
You might be forgiven for getting confused when Jeff Sessions dropped his 25-page “religious freedom” memorandum last week. How does this differ from Trump’s executive order from May? What does this have to do with last week’s rollback of the Obamacare contraception mandate? The answer is that they’re all cut from the same cloth, and they all represent drastic reductions in protection for women and LGBT individuals—all without changing one word of an actual law.
Let’s start at the beginning. Trump, of course, campaigned on promises to a deeply conservative, deeply hate-filled evangelical base that he would rid them of the scourge of LGBT rights and women being able to get birth control. He also campaigned against the Johnson rule, which restricts churches and other tax-exempt organizations from taking partisan political stances. He delivered on those promises as quickly as he could, issuing an executive order in May that told the IRS not to enforce the Johnson rule against churches and clearly indicated that the administration would begin to prioritize the views of religious conservatives over all others.
That May order was convoluted and vague, but broad in scope, but it didn’t go far enough for many conservative religious activists. Apparently, it just took the Trump administration a few months to get it together to deliver the one-two gut punch of last week’s twin bits of awful.
And awful it is. Understanding the rollback of Obamacare’s contraception mandate is more straightforward, though no less terrible: It allows nearly all businesses to refuse to provide birth-control coverage in their employee plans, as long as they claim a “sincere” religious objection. This, in spite of the fact that all evidence shows that increased access to birth control drastically decreases the abortion rate, which is ostensibly the thing that conservatives are most concerned about. But refusing access to birth control is always, always about oppressing women, not providing better health outcomes.
The full religious liberty memo requires a bit more unpacking. It’s based on a 1993 law, the Religious Freedom Restoration Act (RFRA), which states that the federal government cannot “substantially burden” a person’s exercise of religion. In other words, the government has no right to make it hard for you to practice your faith. There is a very large exception, though. The government can burden your exercise of your religion if that burden is necessary to further a “compelling government interest” and, if there is a compelling government interest, the burden imposed by the government is in the least restrictive (or, functionally, least oppressive) manner possible. For example, even if you declared that it is a fundamental tenet of your personal religious beliefs that you be allowed to murder your next door neighbor, the government has a compelling interest in its citizens not getting murdered and does not need to accommodate your religious beliefs.
It’s important to keep in mind here that “a person” in this instance actually includes corporations. Indeed, that’s essentially what the Hobby Lobby case from a few years ago was all about. The craft store behemoth, a place where you might go to buy embroidery hoops or those puffy paint markers, declared that it was religiously opposed to providing birth control to its employees. They didn’t do this by surveying their 35,000 employees and finding that a majority of them held this objection. Instead, the Supreme Court ruled that the owners of the company, David Green and his family, got to decide for everyone what they should do with their own bodies because if they didn’t get to do so, it burdened their exercise of religion.
People like David Green, who want to control women’s bodies, probably also aren’t big fans of employing LGBT people or renting them an apartment or helping them adopt a child. Under Obama, however, the government believed—and rightly so—that the government had a compelling interest in ensuring that LGBT individuals were treated fairly and equally in situations just like that. That is not, of course, a position that AG Jeff Sessions (or likely anyone else in the Trump administration) shares. In fact, quite the opposite. They’re in no way interested in equality as a general principle, period, and now Sessions’s memo gives the green light to people to discriminate against LGBT individuals.
It does so by functionally elevating claims of restrictions on religious freedom over all other types of civil rights claims. This isn’t an unintentional consequence. It’s the entire goal of the memo. It doesn’t come out and say that religious-based discrimination is just fine, of course, but just look who celebrated the issuance of the memo and you can get a good idea of the DOJ’s true intentions.
Tony Perkins of the anti-LGBT Family Research Council loves it, as does the Alliance Defending Freedom (ADF). The ADF has been striving mightily to get anti-LGBT laws on the books at the state and local level for years. Back in 2014, they tried to get a law passed in Arizona which would have let businesses be exempt from LGBT nondiscrimination laws as long as their objections to LGBT individuals were part of their “sincerely held” religious beliefs. And it’s no surprise that the Sessions memo reads like a wish list of ADF goals, given that Sessions gave a top-secret closed door speech to the ADF back in July and actively consulted with them about the guidance in the memo. So, with the issuance of Sessions’s memo, the ADF now gets to see their agenda instituted nationwide.
What does this mean in practical terms? It likely means that a company could refuse to employ an LGBT individual because doing so offends their religious sensibilities. It also probably means that an entity would still be eligible for government grants even if it actively discriminates against LGBT people. Remember Kim Davis, the county clerk in Kentucky that didn’t want to issue marriage licenses to same-sex couples? That’s almost certainly totally fine under this new guidance. And this isn’t just bad for LGBT people. The ACLU points out that under the DOJ’s interpretation of RFRA, a hotel owner could deny accommodations to a Muslim person if the owner argues that providing services to a Muslim violates their faith.
This memo isn’t the only place in which Trump’s DOJ is signaling its complete refusal to protect LGBT people. They’re working hard on all fronts to make sure LGBT individuals can’t fully participate in society. The DOJ recently sided with a conservative Christian cake-baker who has gone all the way to the Supreme Court to fight against the terrible imposition of baking a wedding cake for a gay couple. Sessions also just issued guidance to federal prosecutors saying that Title VII, which bans employment discrimination on the basis of sex, can’t be read to bar discrimination against people who are transgender.
Trump and company, like the conservative evangelicals they are a front for, believe that it isn’t LGBT people or women that are oppressed. In their opinion, it is religious people who are “targeted, bullied [and] silenced” and churches need to be given their voices back. But we all know who the real bullies are here, and, tragically, they’re the ones in power now.