McGovern and Selmi on Religious Freedom Memo (Audio)

federal law. Conservative religious organizations have held the guidance as a necessary step to protect religious freedom, while critics say the Attorney General is using is issuing a license to discriminate against women and gain transgender people and possibly others.

Here to talk with us about the Attorney General's memo are Michael sell Me, a professor of law at George Washington University Law School, and Ash McGovern, the Legislative and Policy director at the Center for Gender and Sexuality Law at Columbia Law School. Michael, let's start with the memo the Trump administrator. That just what the memo says that the Trump administration has been issuing orders to try to provide more accommodations for religious people. Uh, for the religious beliefs.

What exactly did Attorney General Sessions do here and how broad is it? Well? There, the initiatives that were announced on Friday are very broad. Uh. The one that's gotten the most attention is obviously the contraception mandate and the exemptions and the expansion of the current exemptions under the Affordable Care Act. In that what the Trump administration is doing, and this is likely to spill over into many other areas as well, but which respect of this particular issue.

They are allowing just about any entity, any corporate entity, any employer uh to claim a religious exemption under the Affordable Care Acts so that they do not have to provide contraception as part of their insurance plan. Currently under the current law, religious entities, you know, churches, are exempt, and then nonprofit organizations and closely held corporations also have a work around in that they do not have to provide the contraception directly, but instead they would have to

provide it through insurance companies. That workaround would now be optional under the current plan under the Trump administration. Proposal West not a proposal, wanted the effect immediately, but they are taking comments now. It's an interim final rule UM, and the exemption would be available to any other employer

who was covered by the mandate. As let's talk about the federal government UM not prosecuting religious organizations for discrimination and the hiring and firing of employees, and does that

extend to now to private businesses. Sure, So on Friday there was both a contraceptive role and then there was a second memo that came out from the Department of Justice which essentially issued twelve Principles of Federal Religious Freedom and Religious Liberty that all federal agencies now must follow when considering any program, rule, or guidance um And what the Department of Justice is really trying to do and the Trump administration has been trying to do as well

as state and local legislatures, is to train enforcements of enforcement of non discrimination and civil rights protections as discrimination against religious rights and groups. And what's both concerning about this guidance is the fact that it's trying to give religious liberty supremacy over other co equal fundamental rights like

equal protection and due process under the Constitution. So it's creating a more dangerous situations for already vulnerable communities like women, people of color, and LGBT communities while elevating and sort of tipping the sum on the scale towards religious liberty at the extent of other important fundamental rights in the constitution, Michael, the Justice Department has said that, you know, this is just a re explanation of existing law, and it doesn't

really do anything different than what the law already is. Is that correct or is it really a broader interpretation of what religious liberty is. Well, it seems to be a broader interpretation. It's certainly a broader interpretation than was afforded by the Obama administration. Um. And also in terms of that, you know, getting away from the contraception mandate

to the broader analysis. Uh, that would implicate uh lots of the different contexts, including the case that's pending before the Supreme Court, including uh involving the baker who denied making a cake for uh same sex marriage. Uh. And in that case one we think that's interesting. It's pending on the Supreme Court. Now it's primarily a free speech case,

it's not primarily religion case. Uh. The religion case under existing law is very difficult because most corporations who have to comply with these public combinations must comply in all respects, and they don't aren't able to surgery the religious objection just because they personally don't want to provide the service. And the memo announce on Friday, and also the position that the the Trump administration has asserted in the Supreme Court UH as much broader and would provide a religious

exemption to that individual UM if it were adopted. We are talking here on Bloomberg Law with Ash McGovern, the legislative and Policy director at the Center for Gender and Sexuality Law at Columbia Law School, and Michael sell Me, a professor of law at George Washington University Law School, about a memo issued UH last week by Attorney General Jeff Sessions that orders all federal agencies to take an expanse of view of religious liberty when they are enforcing

federal law, or promulgating rules, or taking any of the actions at the federal government takes. Ash. One part of the memo says that I'm quoting here, religious organizations may choose to employ only persons whose beliefs and conduct are

consistent with the organization's religious precepts. You know, on the one hand, you think, okay, so a church only has to hire a priest who believes in the religion in right, But I wonder how far does that sentence go in terms of how religious organizations can hire or people or not.

That's a great point and it goes much further than churches. Unfortunately, So I think often, as we pointed out, when we think about safe based organizations, where we think about actions like this by the federal government was thinking about churches, but we should really be thinking about our nonprofit organizations and the organizations that received billions of dollars in federal contracts and grants from the federal government to provide services.

So that you know, you think you can think more about Salvation Army or Catholic charities, or hospitals and health systems that make billions of dollars each year providing health care but are exempt from laws because they have a religious focus that would be otherwise applicable. So it's it's much broader than the sort of church issue, um, and it's impacts millions and millions of people. It's it's it's

very significant at you, Michael. The Justice Department Sidness Statement disguidance 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. What is your response to that, Well, I think there are two different issues. One, if it were adopted, If their memo were adopted, it would dramatically

change existing law. UM. There's an old case I think it was involving Bob Jones University where they lost their taxic them status because they were racially exclusive, and the court had no trouble finding that they should not qualify for taxis them status given their racial exclusion. That UM, and under this memo arguably UH they could their religious beliefs because it was a religious organization might change all that. Now here's the second part though, that I think a

significant These are all well established legal principles. Now it's not the case that anyone can under existing law, anyone can claim to be a religious organization UH and get protection or get exemptions under Title seven. It's a very narrow category. And there's been lots of different case law UM involving that. A lot of them involved university, something like Georgetown University, which is a Catholic university, but not one that it qualifies as a religious organization, so they

cannot typically only higher Catholics in jobs that don't involve religion. UM. And this memo, if they're adopted, would change all that. But I think the um, they don't have the authority, certainly in terms of the law to change it. This is and I think they were. They are going up against um, well established case law on something like the contraception many they have more room because that's a rule

as opposed to establish case law. Well, speaking of roles, as you know, the memo set is meant to provide guidance to agencies when they promulgate rules to agencies that enforce things like the Johnson Amendment, for that prohibits political speech in churches. Um. And you know there's so there's a lot of places across the government that this concede this memo conceivably could affect the way people create or

enforce rules and laws. Um is it? You know, there's a part of it that says that, um, you can't second the federal goverment can't second guess employers about things like whether providing contraception or presumably other things would cause them to violate their religious beliefs. So when all these federal regulators and prosecutors are in fact looking at all

the things they're supposed to do or not do. How is it that they're going to make judgments about whether or not they have to accommodate a religious belief under this memo? Right? So, I think that's a great question, and my responses that they shouldn't be So. I think another key issue that I'd love to see some litigation around is the the Department of Justice doesn't have the authority to be making these sort of determinations. These are

constitutional protections. UM. One of the federal laws that they cite, for example, the Religious Freedom Restoration Act, which is passed in specifically restores a legal standard for course to apply to to sort of balance these really important interests. So religious liberty is not the only interests and not the

only right in the Constitution. We also have other important protections like the equal protection class and like to do process claws that courts should be looking at a very tact specific inquiry to determine which rights are most important and why in that case, so I would say, um, they're going to try to do it. I don't think it's their place to be doing this work. And I think that's one of the most fundamental issues and flaws

with this guidance UM. And one other thing that I wanted to point out is it's really important to look at the context in which this guidance is being written. So the Department of Justice UM is actively going into court to try and dismantle decades of case law that protects LGBT people under the Constitution and under federal statutes like Title seven. So we know that this is not just about religious liberty. We know that this is not

just about religious freedom. This is a concerted and organized effort and attacks on other people's civil rights and fundamental protections under the constitutions, particularly LGBT communities. Well, we're gonna leave it there. Thanks to Ash McGovern of, the director of the Center for Gender and Sexuality Law, Columbia Law School, and Michael sell Me, a professor of law at George Washington University Law School, for being with us here on Bloomberg Law