This column contains a correction.
The Trump administration’s draft religious liberty executive order, leaked in February, was explicit in its directives and sweeping in its implications. The order President Donald Trump signed in May—the “Presidential Executive Order Promoting Free Speech and Religious Liberty”—rather than formally codifying a view of religious liberty or instructing federal agencies on how to interpret the law, tasks the U.S. attorney general—currently Jeff Sessions—with advancing his interpretation of religious liberty through administrative guidance.* Sessions has already taken steps to oppose workplace protections against discrimination for lesbian, gay, bisexual, and transgender (LGBT) people. Now he will begin extending protections for those seeking a license to discriminate.
In recent remarks to the Alliance Defending Freedom, classified by the Southern Poverty Law Center as an anti-LGBT hate group in part for opposing LGBT rights and supporting a marriage equality ban, Attorney General Sessions suggested he will soon issue guidance dictating how agencies should interpret the Religious Freedom Restoration Act (RFRA), which was passed to protect people from being discriminated against on the basis of their religion. RFRA requires the government to provide a “compelling reason” to “substantially burden” religious exercise. Sessions will likely interpret the “compelling reason” requirement more strictly and the substantial “burden” requirement much more broadly, which would turn this protection against discrimination into an affirmative right to discriminate.
Closely held corporations can already dodge contraceptive coverage requirements under the Affordable Care Act (ACA) by citing religious beliefs thanks to the Supreme Court’s Hobby Lobby ruling. If Sessions pushes an inverted interpretation of RFRA, no burden on religious belief would be too minor to exempt an organization from complying with federal law. Corporations and organizations receiving taxpayer dollars will get to pick and choose which federal regulations they will follow. If someone challenges Sessions’ interpretation and the U.S. Supreme Court affirms Sessions’ view, this executive order will have changed the law for a lifetime.
A closer look at the ‘Promoting Free Speech and Religious Liberty’ executive order
Section 4 of the executive order reads: “to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.” Sessions’ focus on RFRA and protecting “interests in religious freedom” represents a continuation of a long-term push to pervert this legislation.
RFRA has been used as the foundation for some of the most aggressive efforts to expand the use of religious liberty to justify discrimination. Companies and organizations have used RFRA as a justification for everything from refusing to comply with a federal mandate to provide birth control to engaging in religious discrimination in hiring practices for taxpayer-funded jobs. In one instance, a district court even found that RFRA gave employers the right to discriminate against transgender employees.
Allowing Sessions to interpret the meaning of religious liberty ensures that the changes President Trump sought to make through the draft order will take place with less transparency and no accountability. Guidance can be issued quietly, without the same period of public notice and comment that regulations receive. And guidance alone can affect significant policy changes. In one remarkable instance, the Obama administration used guidance to aid school districts in ensuring transgender people had equal access to programs and facilities in educational environments. The Trump administration could not only erase guidance that helped implement equality but wreak havoc by issuing new guidance that allows people to discriminate on the basis of religion.
Because guidance can be issued across a wide range of policy areas and is nearly immune from public input, the attorney general will be able to fundamentally alter the concept of religious liberty by enacting far-reaching standards for who qualifies for religious—or moral—exemptions to federal laws and regulations.
What guidance can do
When it comes to agency-specific instructions, Sessions may begin at home, with the U.S. Department of Justice (DOJ). That agency enforces statutes such as the Americans with Disabilities Act (ADA), which could be stripped of meaning if DOJ guidance promoted an expanded interpretation of religious liberty. For example, religious entities are currently subject to the ADA’s prohibition on discrimination in employment but exempt from other parts of the ADA. The guidance could expand what counts as a religious organization—meaning that more organizations, such as church-affiliated organizations or even businesses, could enjoy these exemptions.
Then there’s the Office on Violence Against Women (OVW), created to implement the Violence Against Women Act (VAWA). That office administers 25 grant programs across the United States, making almost half a billion dollars in grants annually. VAWA now prohibits discrimination on the basis of sexual orientation and gender identity, but religious exemptions could allow OVW grantees to deny victims of domestic violence services or admission to a shelter on either basis.
Beyond damage Sessions could do to regulations and grants overseen by the DOJ, he could instruct the Department of Health and Human Services (HHS) to grant far-reaching religious exemptions to the Affordable Care Act (ACA) Section 1557, interpreted by a 2016 rule to bar discrimination against LGBT people in health care. These exemptions would return health care access for LGBT people back to the time before the ACA, when 10 percent of lesbian, gay, and bisexual people and 25 percent of transgender people reported being refused medical care outright. Beyond outright refusal, many, such as Jakob Tiarnan Rumble, face other forms of discrimination. Rumble successfully sued under Section 1557 after being misgendered by hospital staff, forced to wait for hours, and having a doctor inappropriately handle his genitals until he was in pain. Even as of 2016, nearly 20 percent of LGBT people who reported facing discrimination in the last year said that they subsequently avoided going to the doctor. Religious exemptions would also put the well-being of LGBT runaway and homeless youth at risk. Prior to the creation of an LGBT-inclusive nondiscrimination policy at the HHS Office of Refugee Resettlement (ORR), an unaccompanied immigrant child housed at a shelter funded by ORR was expelled from school and prevented from attending programming at the shelter after he came out as gay.
The DOJ may also issue guidance with other agencies regarding the implementation of statutes for which the agencies have joint responsibility, as is the case with the U.S. Department of Housing and Urban Development (HUD) and the Fair Housing Act (FHA) as it pertains to religious liberty. Under the Obama administration, the DOJ issued guidance clarifying how the FHA applies and to whom it applies to increase protections. But guidance could also be used to essentially neutralize current HUD regulations and permit federally funded shelters to refuse service to LGBT people.
Sessions will be able to determine not only the policies that affect outward-directed agency activities but agencies’ internal operations as well, from how departments set priorities to how federal employees are treated. To the latter point, Sessions could issue guidance resurrecting the language of the draft religious liberty executive order leaked in February, which suggested that federal employers should proactively protect employees acting on religious belief in the workplace. Presumably, such guidance could protect behavior such as refusing to use correct pronouns or proselytizing on anti-LGBT topics, regardless of the effects on co-workers and recipients of government services.
Sessions’ guidance could change people’s rights at the local level—both in federal-local interactions and in setting policy for federal grantees operating at the local level. Federal grantees from health clinics to adoption agencies could be specifically licensed to discriminate. A woman seeking care after an assault, for example, could be denied emergency contraception and a same-sex couple could be rejected as foster parents. Although some people could travel or move to obtain services in some situations, many would simply lose access to critical services in addition to suffering dignitary harm.
Guidance issued by the attorney general could also make it possible to discriminate even in the most urgent circumstances. Following reports of discrimination after Hurricane Katrina, the DOJ, along with the Department of Homeland Security, HUD, HHS, and the Department of Transportation, issued guidance to eliminate biased practices in health care. Conversely, guidance could be used to effectively license discrimination on the basis of religious belief when it comes to the provision of services.
Depending on how Sessions interprets RFRA and what instructions he gives agencies about exemptions from following the law based on religious belief, he could expand the statute’s application to corporations and businesses even further. Exempting private businesses and organizations that assert religious affiliations, as well as federal grantees, from complying with federal laws that impose costs, as with the leaked rule rolling back the contraceptive mandate, would give these organizations and businesses an unfair competitive advantage as well as resulting in thousands of people losing critical health coverage—to name a few negative outcomes.
The path ahead
Far from an improvement over the February draft religious liberty executive order, the executive order that President Trump signed in May has given the administration cover for its attack on civil rights. Sessions can erode individual rights perhaps even more effectively than the president could have with a sweeping pronouncement by issuing targeted formal instructions to agencies.
Agency by agency, program by program, Sessions can erode fundamental protections for women and LGBT people, among others, and instate new religious exemptions allowing billions of taxpayer dollars to be used to discriminate. Moreover, Sessions has the power to issue guidance reaching well beyond federal agencies to any beneficiaries of federal funding and to the state and local levels.
Delegating guidance responsibility to Sessions is also a clever legal maneuver. Sessions’ work will be far harder to challenge and more taxing to undo, as each piece of guidance must either be challenged in court or be rescinded by a subsequent administration. In the meantime, hundreds of thousands of individuals, from single women to children awaiting adoption, will be under constant threat of losing their rights to live and work free of discrimination.
Rebecca Buckwalter-Poza is a fellow at the Center for American Progress. Sharita Gruberg is the associate director of the LGBT Research and Communications Project at the Center.
* Correction, July 31, 2017: This column has been updated to reflect the fact that the “Promoting Religious Liberty and Free Speech” executive order was signed in May.