A second memo by the attorney general directs implementation of the guidance within the Department of Justice. Since then, ADF has established itself as a leading litigation and appellate advocacy group for Christian right causes, including opposition to abortion and same-sex marriage, and social conservatives hail the group as champions of religious freedom. But the new guidance, demonstrating the risky distortion of religious liberty by the Supreme Court's conservatives in the Hobby Lobby case, redefines "significant burden" to essentially cover being offended.
Under the 1993 law, the federal government must not substantially burden one's deeply-held religious beliefs unless it establishes that to do so is in its "compelling interest" and is the "least-restrictive means" of fulfilling that interest. Sessions' memo also runs contrary to the current position of the U.S. Equal Employment Opportunity Commission, which treats discrimination against an employee on the basis of gender identity, including transgender status and sexual orientation, as violations of Title VII. The document has already been criticized by its opponents as oppressive to women and the LGBT community.
Justice Department officials say the analysis was produced to follow up on President Donald Trump's executive order on religious freedom in May, and they say it sets no new policies and isn't directly related to any pending legal dispute.
Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.
"Today the Trump-Pence administration launched an all-out assault on LGBTQ people, women, and other minority communities by unleashing a sweeping license to discriminate", Human Rights Campaign President Chad Griffin said. A nonprofit group with a federal contract could refuse to provide services to LGBT people, even in emergencies, and would not be in danger of losing its contract.
For instance, USA attorneys at the Department of Justice in litigation must "conform all the arguments that the government is making across the country" to the religious freedom principles outlined in the guidance, he said. On Friday, the Trump administration issued a rule - which the ACLU said it would sue over - allowing a much broader group of employers and insurers to exempt themselves from covering contraceptives on religious or moral grounds.
Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers' religious precepts. "Nothing could be more un-American and unholy that using religion to justify harm and discrimination to others".
The right to free exercise of one's faith is good and important and valuable, sure, but in this context, the interpretation of that right has serious consequences for other rights, too.
Title VII of the Civil Rights Act prohibits covered employers from discriminating against individuals on the basis of their religion.
Trump's order is being challenged in court, though some religious activists and experts have said it was more symbolic than practically meaningful. The Justice Department also sided with a Colorado cake baker who would not bake a wedding cake for a same sex couple.
"We have seen public officials criticized for their religious beliefs, elected representatives who have called for a "religious test" for public office, and marketplace discrimination against religious people who own and run businesses according to the dictates of their individual consciences", noted Bob Goodlatte, chairman of the House Judiciary Committee. It is a nakedly political choice to declare that denying coverage is within the scope of one's religious freedom rights after all, and Sessions' attempt to cast this conclusion as the product of the neutral application of legal principles is misleading and disingenuous.