1
00:00:00,160 --> 00:00:03,280
Speaker 1: On Friday, Attorney General Jeff Sessions issued a twenty five

2
00:00:03,320 --> 00:00:07,720
Speaker 1: page memo entitled Federal Law Protections for Religious Liberty. The

3
00:00:07,760 --> 00:00:10,799
Speaker 1: memo is directed to all federal agencies and it's meant

4
00:00:10,800 --> 00:00:13,760
Speaker 1: as guidance on how the entire federal government should execute

5
00:00:13,760 --> 00:00:17,720
Speaker 1: federal law. Conservative religious organizations have held the guidance as

6
00:00:17,720 --> 00:00:21,520
Speaker 1: a necessary step to protect religious freedom, while critics say

7
00:00:21,560 --> 00:00:24,119
Speaker 1: the Attorney General is using is issuing a license to

8
00:00:24,160 --> 00:00:28,720
Speaker 1: discriminate against women and gain transgender people and possibly others.

9
00:00:29,560 --> 00:00:31,760
Speaker 1: Here to talk with us about the Attorney General's memo

10
00:00:32,200 --> 00:00:34,479
Speaker 1: are Michael sell Me, a professor of law at George

11
00:00:34,479 --> 00:00:38,559
Speaker 1: Washington University Law School, and Ash McGovern, the Legislative and

12
00:00:38,680 --> 00:00:41,600
Speaker 1: Policy director at the Center for Gender and Sexuality Law

13
00:00:41,840 --> 00:00:46,480
Speaker 1: at Columbia Law School. Michael, let's start with the memo

14
00:00:46,560 --> 00:00:49,320
Speaker 1: the Trump administrator. That just what the memo says that

15
00:00:49,440 --> 00:00:53,239
Speaker 1: the Trump administration has been issuing orders to try to

16
00:00:53,880 --> 00:00:58,840
Speaker 1: provide more accommodations for religious people. Uh, for the religious beliefs.

17
00:01:00,240 --> 00:01:03,400
Speaker 1: What exactly did Attorney General Sessions do here and how

18
00:01:03,440 --> 00:01:08,520
Speaker 1: broad is it? Well? There, the initiatives that were announced

19
00:01:08,520 --> 00:01:11,400
Speaker 1: on Friday are very broad. Uh. The one that's gotten

20
00:01:11,400 --> 00:01:15,640
Speaker 1: the most attention is obviously the contraception mandate and the

21
00:01:15,720 --> 00:01:21,119
Speaker 1: exemptions and the expansion of the current exemptions under the

22
00:01:21,160 --> 00:01:25,840
Speaker 1: Affordable Care Act. In that what the Trump administration is doing,

23
00:01:25,840 --> 00:01:28,319
Speaker 1: and this is likely to spill over into many other

24
00:01:28,400 --> 00:01:31,000
Speaker 1: areas as well, but which respect of this particular issue.

25
00:01:31,520 --> 00:01:36,399
Speaker 1: They are allowing just about any entity, any corporate entity,

26
00:01:36,400 --> 00:01:42,080
Speaker 1: any employer uh to claim a religious exemption under the

27
00:01:42,240 --> 00:01:44,800
Speaker 1: Affordable Care Acts so that they do not have to

28
00:01:44,840 --> 00:01:49,120
Speaker 1: provide contraception as part of their insurance plan. Currently under

29
00:01:49,160 --> 00:01:54,080
Speaker 1: the current law, religious entities, you know, churches, are exempt,

30
00:01:54,160 --> 00:01:59,120
Speaker 1: and then nonprofit organizations and closely held corporations also have

31
00:01:59,160 --> 00:02:01,680
Speaker 1: a work around in that they do not have to

32
00:02:01,720 --> 00:02:07,240
Speaker 1: provide the contraception directly, but instead they would have to

33
00:02:07,240 --> 00:02:10,720
Speaker 1: provide it through insurance companies. That workaround would now be

34
00:02:10,840 --> 00:02:15,600
Speaker 1: optional under the current plan under the Trump administration. Proposal

35
00:02:15,600 --> 00:02:18,240
Speaker 1: West not a proposal, wanted the effect immediately, but they

36
00:02:18,280 --> 00:02:21,760
Speaker 1: are taking comments now. It's an interim final rule UM,

37
00:02:21,960 --> 00:02:25,919
Speaker 1: and the exemption would be available to any other employer

38
00:02:25,960 --> 00:02:29,880
Speaker 1: who was covered by the mandate. As let's talk about

39
00:02:29,880 --> 00:02:35,480
Speaker 1: the federal government UM not prosecuting religious organizations for discrimination

40
00:02:35,560 --> 00:02:39,240
Speaker 1: and the hiring and firing of employees, and does that

41
00:02:39,360 --> 00:02:45,960
Speaker 1: extend to now to private businesses. Sure, So on Friday

42
00:02:46,040 --> 00:02:48,239
Speaker 1: there was both a contraceptive role and then there was

43
00:02:48,280 --> 00:02:50,400
Speaker 1: a second memo that came out from the Department of

44
00:02:50,440 --> 00:02:55,800
Speaker 1: Justice which essentially issued twelve Principles of Federal Religious Freedom

45
00:02:55,880 --> 00:02:58,840
Speaker 1: and Religious Liberty that all federal agencies now must follow

46
00:02:59,120 --> 00:03:02,320
Speaker 1: when considering any program, rule, or guidance um And what

47
00:03:02,400 --> 00:03:04,400
Speaker 1: the Department of Justice is really trying to do and

48
00:03:04,400 --> 00:03:07,200
Speaker 1: the Trump administration has been trying to do as well

49
00:03:07,240 --> 00:03:11,000
Speaker 1: as state and local legislatures, is to train enforcements of

50
00:03:11,240 --> 00:03:15,679
Speaker 1: enforcement of non discrimination and civil rights protections as discrimination

51
00:03:15,800 --> 00:03:19,200
Speaker 1: against religious rights and groups. And what's both concerning about

52
00:03:19,240 --> 00:03:21,560
Speaker 1: this guidance is the fact that it's trying to give

53
00:03:21,600 --> 00:03:25,440
Speaker 1: religious liberty supremacy over other co equal fundamental rights like

54
00:03:25,760 --> 00:03:29,839
Speaker 1: equal protection and due process under the Constitution. So it's

55
00:03:29,919 --> 00:03:33,959
Speaker 1: creating a more dangerous situations for already vulnerable communities like women,

56
00:03:33,960 --> 00:03:37,800
Speaker 1: people of color, and LGBT communities while elevating and sort

57
00:03:37,800 --> 00:03:40,960
Speaker 1: of tipping the sum on the scale towards religious liberty

58
00:03:41,520 --> 00:03:46,080
Speaker 1: at the extent of other important fundamental rights in the constitution, Michael,

59
00:03:46,160 --> 00:03:48,720
Speaker 1: the Justice Department has said that, you know, this is

60
00:03:48,760 --> 00:03:53,880
Speaker 1: just a re explanation of existing law, and it doesn't

61
00:03:53,880 --> 00:03:58,440
Speaker 1: really do anything different than what the law already is.

62
00:03:58,440 --> 00:04:01,840
Speaker 1: Is that correct or is it really a broader interpretation

63
00:04:01,960 --> 00:04:05,560
Speaker 1: of what religious liberty is. Well, it seems to be

64
00:04:05,640 --> 00:04:08,640
Speaker 1: a broader interpretation. It's certainly a broader interpretation than was

65
00:04:08,680 --> 00:04:13,200
Speaker 1: afforded by the Obama administration. Um. And also in terms

66
00:04:13,200 --> 00:04:16,200
Speaker 1: of that, you know, getting away from the contraception mandate

67
00:04:16,240 --> 00:04:21,640
Speaker 1: to the broader analysis. Uh, that would implicate uh lots

68
00:04:21,720 --> 00:04:25,360
Speaker 1: of the different contexts, including the case that's pending before

69
00:04:25,360 --> 00:04:29,400
Speaker 1: the Supreme Court, including uh involving the baker who denied

70
00:04:30,040 --> 00:04:34,320
Speaker 1: making a cake for uh same sex marriage. Uh. And

71
00:04:34,440 --> 00:04:36,760
Speaker 1: in that case one we think that's interesting. It's pending

72
00:04:36,760 --> 00:04:39,279
Speaker 1: on the Supreme Court. Now it's primarily a free speech case,

73
00:04:39,320 --> 00:04:43,039
Speaker 1: it's not primarily religion case. Uh. The religion case under

74
00:04:43,040 --> 00:04:46,880
Speaker 1: existing law is very difficult because most corporations who have

75
00:04:47,000 --> 00:04:51,400
Speaker 1: to comply with these public combinations must comply in all respects,

76
00:04:51,440 --> 00:04:54,880
Speaker 1: and they don't aren't able to surgery the religious objection

77
00:04:55,000 --> 00:04:59,120
Speaker 1: just because they personally don't want to provide the service.

78
00:04:59,279 --> 00:05:03,640
Speaker 1: And the memo announce on Friday, and also the position

79
00:05:03,680 --> 00:05:07,440
Speaker 1: that the the Trump administration has asserted in the Supreme

80
00:05:07,480 --> 00:05:11,120
Speaker 1: Court UH as much broader and would provide a religious

81
00:05:11,160 --> 00:05:15,159
Speaker 1: exemption to that individual UM if it were adopted. We

82
00:05:15,240 --> 00:05:17,640
Speaker 1: are talking here on Bloomberg Law with Ash McGovern, the

83
00:05:17,720 --> 00:05:20,200
Speaker 1: legislative and Policy director at the Center for Gender and

84
00:05:20,240 --> 00:05:23,080
Speaker 1: Sexuality Law at Columbia Law School, and Michael sell Me,

85
00:05:23,200 --> 00:05:26,400
Speaker 1: a professor of law at George Washington University Law School,

86
00:05:26,560 --> 00:05:29,400
Speaker 1: about a memo issued UH last week by Attorney General

87
00:05:29,480 --> 00:05:32,480
Speaker 1: Jeff Sessions that orders all federal agencies to take an

88
00:05:32,480 --> 00:05:36,120
Speaker 1: expanse of view of religious liberty when they are enforcing

89
00:05:36,440 --> 00:05:39,120
Speaker 1: federal law, or promulgating rules, or taking any of the

90
00:05:39,120 --> 00:05:43,320
Speaker 1: actions at the federal government takes. Ash. One part of

91
00:05:43,360 --> 00:05:47,760
Speaker 1: the memo says that I'm quoting here, religious organizations may

92
00:05:47,839 --> 00:05:51,480
Speaker 1: choose to employ only persons whose beliefs and conduct are

93
00:05:51,480 --> 00:05:55,520
Speaker 1: consistent with the organization's religious precepts. You know, on the

94
00:05:55,520 --> 00:05:58,080
Speaker 1: one hand, you think, okay, so a church only has

95
00:05:58,080 --> 00:06:00,560
Speaker 1: to hire a priest who believes in the religion in right,

96
00:06:00,960 --> 00:06:05,440
Speaker 1: But I wonder how far does that sentence go in

97
00:06:05,560 --> 00:06:09,480
Speaker 1: terms of how religious organizations can hire or people or not.

98
00:06:10,560 --> 00:06:14,160
Speaker 1: That's a great point and it goes much further than churches. Unfortunately,

99
00:06:14,240 --> 00:06:16,839
Speaker 1: So I think often, as we pointed out, when we

100
00:06:16,839 --> 00:06:19,960
Speaker 1: think about safe based organizations, where we think about actions

101
00:06:19,960 --> 00:06:22,360
Speaker 1: like this by the federal government was thinking about churches,

102
00:06:22,400 --> 00:06:26,520
Speaker 1: but we should really be thinking about our nonprofit organizations

103
00:06:26,520 --> 00:06:29,800
Speaker 1: and the organizations that received billions of dollars in federal

104
00:06:29,880 --> 00:06:33,599
Speaker 1: contracts and grants from the federal government to provide services.

105
00:06:33,640 --> 00:06:35,720
Speaker 1: So that you know, you think you can think more

106
00:06:35,720 --> 00:06:40,279
Speaker 1: about Salvation Army or Catholic charities, or hospitals and health

107
00:06:40,279 --> 00:06:43,679
Speaker 1: systems that make billions of dollars each year providing health

108
00:06:43,720 --> 00:06:46,279
Speaker 1: care but are exempt from laws because they have a

109
00:06:46,320 --> 00:06:50,040
Speaker 1: religious focus that would be otherwise applicable. So it's it's

110
00:06:50,120 --> 00:06:52,840
Speaker 1: much broader than the sort of church issue, um, and

111
00:06:52,920 --> 00:06:56,320
Speaker 1: it's impacts millions and millions of people. It's it's it's

112
00:06:56,440 --> 00:07:00,400
Speaker 1: very significant at you, Michael. The Justice Department Sidness Statement

113
00:07:00,800 --> 00:07:04,360
Speaker 1: disguidance does not authorize anyone to discriminate on the basis

114
00:07:04,400 --> 00:07:08,840
Speaker 1: of race, ethnicity, national origin, sex, sexual orientation, or gender

115
00:07:08,880 --> 00:07:12,640
Speaker 1: identity in violation of federal law or change existing federal

116
00:07:12,680 --> 00:07:17,480
Speaker 1: and state protections. What is your response to that, Well,

117
00:07:17,760 --> 00:07:20,720
Speaker 1: I think there are two different issues. One, if it

118
00:07:20,800 --> 00:07:25,520
Speaker 1: were adopted, If their memo were adopted, it would dramatically

119
00:07:25,640 --> 00:07:28,680
Speaker 1: change existing law. UM. There's an old case I think

120
00:07:28,720 --> 00:07:33,080
Speaker 1: it was involving Bob Jones University where they lost their

121
00:07:33,080 --> 00:07:36,720
Speaker 1: taxic them status because they were racially exclusive, and the

122
00:07:36,760 --> 00:07:40,160
Speaker 1: court had no trouble finding that they should not qualify

123
00:07:40,280 --> 00:07:44,720
Speaker 1: for taxis them status given their racial exclusion. That UM,

124
00:07:44,920 --> 00:07:50,280
Speaker 1: and under this memo arguably UH they could their religious

125
00:07:50,280 --> 00:07:56,160
Speaker 1: beliefs because it was a religious organization might change all that.

126
00:07:56,680 --> 00:07:58,520
Speaker 1: Now here's the second part though, that I think a

127
00:07:58,560 --> 00:08:03,880
Speaker 1: significant These are all well established legal principles. Now it's

128
00:08:03,920 --> 00:08:08,120
Speaker 1: not the case that anyone can under existing law, anyone

129
00:08:08,160 --> 00:08:11,800
Speaker 1: can claim to be a religious organization UH and get

130
00:08:11,800 --> 00:08:15,200
Speaker 1: protection or get exemptions under Title seven. It's a very

131
00:08:15,320 --> 00:08:18,360
Speaker 1: narrow category. And there's been lots of different case law

132
00:08:18,640 --> 00:08:21,520
Speaker 1: UM involving that. A lot of them involved university, something

133
00:08:21,560 --> 00:08:24,320
Speaker 1: like Georgetown University, which is a Catholic university, but not

134
00:08:25,520 --> 00:08:28,160
Speaker 1: one that it qualifies as a religious organization, so they

135
00:08:28,200 --> 00:08:33,800
Speaker 1: cannot typically only higher Catholics in jobs that don't involve religion. UM.

136
00:08:33,960 --> 00:08:37,320
Speaker 1: And this memo, if they're adopted, would change all that.

137
00:08:37,360 --> 00:08:40,840
Speaker 1: But I think the um, they don't have the authority,

138
00:08:41,040 --> 00:08:43,400
Speaker 1: certainly in terms of the law to change it. This

139
00:08:43,480 --> 00:08:46,160
Speaker 1: is and I think they were. They are going up

140
00:08:46,200 --> 00:08:49,760
Speaker 1: against um, well established case law on something like the

141
00:08:49,760 --> 00:08:53,640
Speaker 1: contraception many they have more room because that's a rule

142
00:08:53,880 --> 00:08:57,720
Speaker 1: as opposed to establish case law. Well, speaking of roles,

143
00:08:57,760 --> 00:09:01,280
Speaker 1: as you know, the memo set is meant to provide

144
00:09:01,280 --> 00:09:05,120
Speaker 1: guidance to agencies when they promulgate rules to agencies that

145
00:09:05,240 --> 00:09:08,199
Speaker 1: enforce things like the Johnson Amendment, for that prohibits political

146
00:09:08,200 --> 00:09:12,600
Speaker 1: speech in churches. Um. And you know there's so there's

147
00:09:12,600 --> 00:09:15,199
Speaker 1: a lot of places across the government that this concede

148
00:09:15,280 --> 00:09:18,560
Speaker 1: this memo conceivably could affect the way people create or

149
00:09:18,720 --> 00:09:24,880
Speaker 1: enforce rules and laws. Um is it? You know, there's

150
00:09:24,880 --> 00:09:27,160
Speaker 1: a part of it that says that, um, you can't

151
00:09:27,200 --> 00:09:30,480
Speaker 1: second the federal goverment can't second guess employers about things

152
00:09:30,520 --> 00:09:34,320
Speaker 1: like whether providing contraception or presumably other things would cause

153
00:09:34,360 --> 00:09:37,400
Speaker 1: them to violate their religious beliefs. So when all these

154
00:09:37,400 --> 00:09:40,679
Speaker 1: federal regulators and prosecutors are in fact looking at all

155
00:09:40,720 --> 00:09:44,000
Speaker 1: the things they're supposed to do or not do. How

156
00:09:44,120 --> 00:09:46,280
Speaker 1: is it that they're going to make judgments about whether

157
00:09:46,400 --> 00:09:48,800
Speaker 1: or not they have to accommodate a religious belief under

158
00:09:48,840 --> 00:09:52,360
Speaker 1: this memo? Right? So, I think that's a great question,

159
00:09:52,440 --> 00:09:55,240
Speaker 1: and my responses that they shouldn't be So. I think

160
00:09:55,520 --> 00:09:57,840
Speaker 1: another key issue that I'd love to see some litigation

161
00:09:57,880 --> 00:10:00,520
Speaker 1: around is the the Department of Justice doesn't have the

162
00:10:00,520 --> 00:10:03,360
Speaker 1: authority to be making these sort of determinations. These are

163
00:10:03,400 --> 00:10:06,800
Speaker 1: constitutional protections. UM. One of the federal laws that they cite,

164
00:10:06,840 --> 00:10:09,800
Speaker 1: for example, the Religious Freedom Restoration Act, which is passed

165
00:10:09,840 --> 00:10:15,400
Speaker 1: in specifically restores a legal standard for course to apply

166
00:10:15,920 --> 00:10:19,640
Speaker 1: to to sort of balance these really important interests. So

167
00:10:19,679 --> 00:10:22,040
Speaker 1: religious liberty is not the only interests and not the

168
00:10:22,080 --> 00:10:25,240
Speaker 1: only right in the Constitution. We also have other important

169
00:10:25,800 --> 00:10:28,000
Speaker 1: protections like the equal protection class and like to do

170
00:10:28,120 --> 00:10:31,160
Speaker 1: process claws that courts should be looking at a very

171
00:10:31,320 --> 00:10:35,280
Speaker 1: tact specific inquiry to determine which rights are most important

172
00:10:35,320 --> 00:10:37,920
Speaker 1: and why in that case, so I would say, um,

173
00:10:38,080 --> 00:10:40,200
Speaker 1: they're going to try to do it. I don't think

174
00:10:40,200 --> 00:10:42,400
Speaker 1: it's their place to be doing this work. And I

175
00:10:42,400 --> 00:10:45,040
Speaker 1: think that's one of the most fundamental issues and flaws

176
00:10:45,080 --> 00:10:47,160
Speaker 1: with this guidance UM. And one other thing that I

177
00:10:47,160 --> 00:10:49,240
Speaker 1: wanted to point out is it's really important to look

178
00:10:49,240 --> 00:10:52,680
Speaker 1: at the context in which this guidance is being written.

179
00:10:52,720 --> 00:10:56,640
Speaker 1: So the Department of Justice UM is actively going into

180
00:10:56,760 --> 00:10:59,440
Speaker 1: court to try and dismantle decades of case law that

181
00:10:59,480 --> 00:11:04,160
Speaker 1: protects LGBT people under the Constitution and under federal statutes

182
00:11:04,200 --> 00:11:06,840
Speaker 1: like Title seven. So we know that this is not

183
00:11:07,040 --> 00:11:09,320
Speaker 1: just about religious liberty. We know that this is not

184
00:11:09,400 --> 00:11:12,480
Speaker 1: just about religious freedom. This is a concerted and organized

185
00:11:12,520 --> 00:11:16,400
Speaker 1: effort and attacks on other people's civil rights and fundamental

186
00:11:16,440 --> 00:11:20,680
Speaker 1: protections under the constitutions, particularly LGBT communities. Well, we're gonna

187
00:11:20,760 --> 00:11:24,120
Speaker 1: leave it there. Thanks to Ash McGovern of, the director

188
00:11:24,240 --> 00:11:27,160
Speaker 1: of the Center for Gender and Sexuality Law, Columbia Law School,

189
00:11:27,200 --> 00:11:29,680
Speaker 1: and Michael sell Me, a professor of law at George

190
00:11:29,679 --> 00:11:32,520
Speaker 1: Washington University Law School, for being with us here on

191
00:11:32,679 --> 00:11:34,000
Speaker 1: Bloomberg Law