Speaker 1: On Friday, Attorney General Jeff Sessions issued a twenty five
Speaker 1: page memo entitled Federal Law Protections for Religious Liberty. The
Speaker 1: memo is directed to all federal agencies and it's meant
Speaker 1: as guidance on how the entire federal government should execute
Speaker 1: federal law. Conservative religious organizations have held the guidance as
Speaker 1: a necessary step to protect religious freedom, while critics say
Speaker 1: the Attorney General is using is issuing a license to
Speaker 1: discriminate against women and gain transgender people and possibly others.
Speaker 1: Here to talk with us about the Attorney General's memo
Speaker 1: are Michael sell Me, a professor of law at George
Speaker 1: Washington University Law School, and Ash McGovern, the Legislative and
Speaker 1: Policy director at the Center for Gender and Sexuality Law
Speaker 1: at Columbia Law School. Michael, let's start with the memo
Speaker 1: the Trump administrator. That just what the memo says that
Speaker 1: the Trump administration has been issuing orders to try to
Speaker 1: provide more accommodations for religious people. Uh, for the religious beliefs.
Speaker 1: What exactly did Attorney General Sessions do here and how
Speaker 1: broad is it? Well? There, the initiatives that were announced
Speaker 1: on Friday are very broad. Uh. The one that's gotten
Speaker 1: the most attention is obviously the contraception mandate and the
Speaker 1: exemptions and the expansion of the current exemptions under the
Speaker 1: Affordable Care Act. In that what the Trump administration is doing,
Speaker 1: and this is likely to spill over into many other
Speaker 1: areas as well, but which respect of this particular issue.
Speaker 1: They are allowing just about any entity, any corporate entity,
Speaker 1: any employer uh to claim a religious exemption under the
Speaker 1: Affordable Care Acts so that they do not have to
Speaker 1: provide contraception as part of their insurance plan. Currently under
Speaker 1: the current law, religious entities, you know, churches, are exempt,
Speaker 1: and then nonprofit organizations and closely held corporations also have
Speaker 1: a work around in that they do not have to
Speaker 1: provide the contraception directly, but instead they would have to
Speaker 1: provide it through insurance companies. That workaround would now be
Speaker 1: optional under the current plan under the Trump administration. Proposal
Speaker 1: West not a proposal, wanted the effect immediately, but they
Speaker 1: are taking comments now. It's an interim final rule UM,
Speaker 1: and the exemption would be available to any other employer
Speaker 1: who was covered by the mandate. As let's talk about
Speaker 1: the federal government UM not prosecuting religious organizations for discrimination
Speaker 1: and the hiring and firing of employees, and does that
Speaker 1: extend to now to private businesses. Sure, So on Friday
Speaker 1: there was both a contraceptive role and then there was
Speaker 1: a second memo that came out from the Department of
Speaker 1: Justice which essentially issued twelve Principles of Federal Religious Freedom
Speaker 1: and Religious Liberty that all federal agencies now must follow
Speaker 1: when considering any program, rule, or guidance um And what
Speaker 1: the Department of Justice is really trying to do and
Speaker 1: the Trump administration has been trying to do as well
Speaker 1: as state and local legislatures, is to train enforcements of
Speaker 1: enforcement of non discrimination and civil rights protections as discrimination
Speaker 1: against religious rights and groups. And what's both concerning about
Speaker 1: this guidance is the fact that it's trying to give
Speaker 1: religious liberty supremacy over other co equal fundamental rights like
Speaker 1: equal protection and due process under the Constitution. So it's
Speaker 1: creating a more dangerous situations for already vulnerable communities like women,
Speaker 1: people of color, and LGBT communities while elevating and sort
Speaker 1: of tipping the sum on the scale towards religious liberty
Speaker 1: at the extent of other important fundamental rights in the constitution, Michael,
Speaker 1: the Justice Department has said that, you know, this is
Speaker 1: just a re explanation of existing law, and it doesn't
Speaker 1: really do anything different than what the law already is.
Speaker 1: Is that correct or is it really a broader interpretation
Speaker 1: of what religious liberty is. Well, it seems to be
Speaker 1: a broader interpretation. It's certainly a broader interpretation than was
Speaker 1: afforded by the Obama administration. Um. And also in terms
Speaker 1: of that, you know, getting away from the contraception mandate
Speaker 1: to the broader analysis. Uh, that would implicate uh lots
Speaker 1: of the different contexts, including the case that's pending before
Speaker 1: the Supreme Court, including uh involving the baker who denied
Speaker 1: making a cake for uh same sex marriage. Uh. And
Speaker 1: in that case one we think that's interesting. It's pending
Speaker 1: on the Supreme Court. Now it's primarily a free speech case,
Speaker 1: it's not primarily religion case. Uh. The religion case under
Speaker 1: existing law is very difficult because most corporations who have
Speaker 1: to comply with these public combinations must comply in all respects,
Speaker 1: and they don't aren't able to surgery the religious objection
Speaker 1: just because they personally don't want to provide the service.
Speaker 1: And the memo announce on Friday, and also the position
Speaker 1: that the the Trump administration has asserted in the Supreme
Speaker 1: Court UH as much broader and would provide a religious
Speaker 1: exemption to that individual UM if it were adopted. We
Speaker 1: are talking here on Bloomberg Law with Ash McGovern, the
Speaker 1: legislative and Policy director at the Center for Gender and
Speaker 1: Sexuality Law at Columbia Law School, and Michael sell Me,
Speaker 1: a professor of law at George Washington University Law School,
Speaker 1: about a memo issued UH last week by Attorney General
Speaker 1: Jeff Sessions that orders all federal agencies to take an
Speaker 1: expanse of view of religious liberty when they are enforcing
Speaker 1: federal law, or promulgating rules, or taking any of the
Speaker 1: actions at the federal government takes. Ash. One part of
Speaker 1: the memo says that I'm quoting here, religious organizations may
Speaker 1: choose to employ only persons whose beliefs and conduct are
Speaker 1: consistent with the organization's religious precepts. You know, on the
Speaker 1: one hand, you think, okay, so a church only has
Speaker 1: to hire a priest who believes in the religion in right,
Speaker 1: But I wonder how far does that sentence go in
Speaker 1: terms of how religious organizations can hire or people or not.
Speaker 1: That's a great point and it goes much further than churches. Unfortunately,
Speaker 1: So I think often, as we pointed out, when we
Speaker 1: think about safe based organizations, where we think about actions
Speaker 1: like this by the federal government was thinking about churches,
Speaker 1: but we should really be thinking about our nonprofit organizations
Speaker 1: and the organizations that received billions of dollars in federal
Speaker 1: contracts and grants from the federal government to provide services.
Speaker 1: So that you know, you think you can think more
Speaker 1: about Salvation Army or Catholic charities, or hospitals and health
Speaker 1: systems that make billions of dollars each year providing health
Speaker 1: care but are exempt from laws because they have a
Speaker 1: religious focus that would be otherwise applicable. So it's it's
Speaker 1: much broader than the sort of church issue, um, and
Speaker 1: it's impacts millions and millions of people. It's it's it's
Speaker 1: very significant at you, Michael. The Justice Department Sidness Statement
Speaker 1: disguidance does not authorize anyone to discriminate on the basis
Speaker 1: of race, ethnicity, national origin, sex, sexual orientation, or gender
Speaker 1: identity in violation of federal law or change existing federal
Speaker 1: and state protections. What is your response to that, Well,
Speaker 1: I think there are two different issues. One, if it
Speaker 1: were adopted, If their memo were adopted, it would dramatically
Speaker 1: change existing law. UM. There's an old case I think
Speaker 1: it was involving Bob Jones University where they lost their
Speaker 1: taxic them status because they were racially exclusive, and the
Speaker 1: court had no trouble finding that they should not qualify
Speaker 1: for taxis them status given their racial exclusion. That UM,
Speaker 1: and under this memo arguably UH they could their religious
Speaker 1: beliefs because it was a religious organization might change all that.
Speaker 1: Now here's the second part though, that I think a
Speaker 1: significant These are all well established legal principles. Now it's
Speaker 1: not the case that anyone can under existing law, anyone
Speaker 1: can claim to be a religious organization UH and get
Speaker 1: protection or get exemptions under Title seven. It's a very
Speaker 1: narrow category. And there's been lots of different case law
Speaker 1: UM involving that. A lot of them involved university, something
Speaker 1: like Georgetown University, which is a Catholic university, but not
Speaker 1: one that it qualifies as a religious organization, so they
Speaker 1: cannot typically only higher Catholics in jobs that don't involve religion. UM.
Speaker 1: And this memo, if they're adopted, would change all that.
Speaker 1: But I think the um, they don't have the authority,
Speaker 1: certainly in terms of the law to change it. This
Speaker 1: is and I think they were. They are going up
Speaker 1: against um, well established case law on something like the
Speaker 1: contraception many they have more room because that's a rule
Speaker 1: as opposed to establish case law. Well, speaking of roles,
Speaker 1: as you know, the memo set is meant to provide
Speaker 1: guidance to agencies when they promulgate rules to agencies that
Speaker 1: enforce things like the Johnson Amendment, for that prohibits political
Speaker 1: speech in churches. Um. And you know there's so there's
Speaker 1: a lot of places across the government that this concede
Speaker 1: this memo conceivably could affect the way people create or
Speaker 1: enforce rules and laws. Um is it? You know, there's
Speaker 1: a part of it that says that, um, you can't
Speaker 1: second the federal goverment can't second guess employers about things
Speaker 1: like whether providing contraception or presumably other things would cause
Speaker 1: them to violate their religious beliefs. So when all these
Speaker 1: federal regulators and prosecutors are in fact looking at all
Speaker 1: the things they're supposed to do or not do. How
Speaker 1: is it that they're going to make judgments about whether
Speaker 1: or not they have to accommodate a religious belief under
Speaker 1: this memo? Right? So, I think that's a great question,
Speaker 1: and my responses that they shouldn't be So. I think
Speaker 1: another key issue that I'd love to see some litigation
Speaker 1: around is the the Department of Justice doesn't have the
Speaker 1: authority to be making these sort of determinations. These are
Speaker 1: constitutional protections. UM. One of the federal laws that they cite,
Speaker 1: for example, the Religious Freedom Restoration Act, which is passed
Speaker 1: in specifically restores a legal standard for course to apply
Speaker 1: to to sort of balance these really important interests. So
Speaker 1: religious liberty is not the only interests and not the
Speaker 1: only right in the Constitution. We also have other important
Speaker 1: protections like the equal protection class and like to do
Speaker 1: process claws that courts should be looking at a very
Speaker 1: tact specific inquiry to determine which rights are most important
Speaker 1: and why in that case, so I would say, um,
Speaker 1: they're going to try to do it. I don't think
Speaker 1: it's their place to be doing this work. And I
Speaker 1: think that's one of the most fundamental issues and flaws
Speaker 1: with this guidance UM. And one other thing that I
Speaker 1: wanted to point out is it's really important to look
Speaker 1: at the context in which this guidance is being written.
Speaker 1: So the Department of Justice UM is actively going into
Speaker 1: court to try and dismantle decades of case law that
Speaker 1: protects LGBT people under the Constitution and under federal statutes
Speaker 1: like Title seven. So we know that this is not
Speaker 1: just about religious liberty. We know that this is not
Speaker 1: just about religious freedom. This is a concerted and organized
Speaker 1: effort and attacks on other people's civil rights and fundamental
Speaker 1: protections under the constitutions, particularly LGBT communities. Well, we're gonna
Speaker 1: leave it there. Thanks to Ash McGovern of, the director
Speaker 1: of the Center for Gender and Sexuality Law, Columbia Law School,
Speaker 1: and Michael sell Me, a professor of law at George
Speaker 1: Washington University Law School, for being with us here on
Speaker 1: Bloomberg Law