GLBTQ Legal Advocates & Defenders Responds to AG Sessions' October 6 Memo Regarding Federal Law and Religion

October 6, 2017 - GLBTQ Legal Advocates & Defenders (GLAD) responded to the memorandum issued today by Attorney General Jeff Sessions today entitled "Federal Law Protections for Religious Liberty." 

The memorandum states 20 "high level principles" that all federal administrative agencies and executive departments must follow as employers, as regulators, and as they provide contracts and grants to those doing valuable work in the public interest. 

"Our nation rightly respects and protects religious belief and exercise, and this memorandum reiterates some of those protections, such as the obligation not to discriminate on the basis of religion in hiring, and to accommodate religious exercise on the job. Many LGBT people are also people of faith, and GLAD supports those principles without question," said Gary Buseck, GLAD's Legal Director.

"But we should also be clear that some of the 20 "points and principles" are not a statement of current law, but perhaps a vision of what this Administration and Attorney General Sessions wish it to be."

These overly broad interpretations of religious exercise under federal law include:

• Suggesting that religious non-profit organizations and educational institutions should be able to discriminate against others (LGBT people, unmarried persons) by requiring conformity to conduct codes, whereas existing law under Title VII of the Civil Rights Act of 1964 allows such organizations to prefer to hire persons of their own faith but does not currently allow conduct codes.
• Suggesting that the exercise of religious views should prevail even when doing so would deny benefits to others or cause them harm. In the Hobby Lobby case, the Supreme Court was careful to explain that harm to others is crucial in evaluating religious exercise claims and that there was, in its view, "zero harm" in that case because women denied contraceptive coverage by their employer could still obtain the coverage through a government program. Harm to third persons from religious exercise matters, since anyone dealing with government workers or needing government-funded social services could experience refusals of services or the imposition of unwanted or damaging religious attention, including vulnerable LGBT youth in out-of-home settings.

"Freedom of religion is rightly protected by the 1st amendment of our Constitution and by many of our laws. But there is no interpretation of those legitimate protections that authorizes discrimination and harm to others," said Buseck. "We stand ready to go to court to protect the rights of LGBTQ people and our families, friends, and allies. In the courtroom and on the street, we will stand up not only for ourselves, but for the American values of freedom and equality."

GLAD invites any federal employees, contractors, grantees or members of the public to contact the organization about problems or concerns related to negative experiences as a result of the memorandum and future federal government actions.  GLAD's legal information line, GLADAnswers, can be reached at 617-426-1350, or gladanswers@glad.org.

Through strategic litigation, public policy advocacy, and education, GLBTQ Legal Advocates & Defenders works in New England and nationally to create a just society free of discrimination based on gender identity and expression, HIV status, and sexual orientation.