WEBVTT - McGovern and Selmi on Religious Freedom Memo (Audio) 0:00:00.160 --> 0:00:03.280 On Friday, Attorney General Jeff Sessions issued a twenty five 0:00:03.320 --> 0:00:07.720 page memo entitled Federal Law Protections for Religious Liberty. The 0:00:07.760 --> 0:00:10.799 memo is directed to all federal agencies and it's meant 0:00:10.800 --> 0:00:13.760 as guidance on how the entire federal government should execute 0:00:13.760 --> 0:00:17.720 federal law. Conservative religious organizations have held the guidance as 0:00:17.720 --> 0:00:21.520 a necessary step to protect religious freedom, while critics say 0:00:21.560 --> 0:00:24.119 the Attorney General is using is issuing a license to 0:00:24.160 --> 0:00:28.720 discriminate against women and gain transgender people and possibly others. 0:00:29.560 --> 0:00:31.760 Here to talk with us about the Attorney General's memo 0:00:32.200 --> 0:00:34.479 are Michael sell Me, a professor of law at George 0:00:34.479 --> 0:00:38.559 Washington University Law School, and Ash McGovern, the Legislative and 0:00:38.680 --> 0:00:41.600 Policy director at the Center for Gender and Sexuality Law 0:00:41.840 --> 0:00:46.480 at Columbia Law School. Michael, let's start with the memo 0:00:46.560 --> 0:00:49.320 the Trump administrator. That just what the memo says that 0:00:49.440 --> 0:00:53.239 the Trump administration has been issuing orders to try to 0:00:53.880 --> 0:00:58.840 provide more accommodations for religious people. Uh, for the religious beliefs. 0:01:00.240 --> 0:01:03.400 What exactly did Attorney General Sessions do here and how 0:01:03.440 --> 0:01:08.520 broad is it? Well? There, the initiatives that were announced 0:01:08.520 --> 0:01:11.400 on Friday are very broad. Uh. The one that's gotten 0:01:11.400 --> 0:01:15.640 the most attention is obviously the contraception mandate and the 0:01:15.720 --> 0:01:21.119 exemptions and the expansion of the current exemptions under the 0:01:21.160 --> 0:01:25.840 Affordable Care Act. In that what the Trump administration is doing, 0:01:25.840 --> 0:01:28.319 and this is likely to spill over into many other 0:01:28.400 --> 0:01:31.000 areas as well, but which respect of this particular issue. 0:01:31.520 --> 0:01:36.399 They are allowing just about any entity, any corporate entity, 0:01:36.400 --> 0:01:42.080 any employer uh to claim a religious exemption under the 0:01:42.240 --> 0:01:44.800 Affordable Care Acts so that they do not have to 0:01:44.840 --> 0:01:49.120 provide contraception as part of their insurance plan. Currently under 0:01:49.160 --> 0:01:54.080 the current law, religious entities, you know, churches, are exempt, 0:01:54.160 --> 0:01:59.120 and then nonprofit organizations and closely held corporations also have 0:01:59.160 --> 0:02:01.680 a work around in that they do not have to 0:02:01.720 --> 0:02:07.240 provide the contraception directly, but instead they would have to 0:02:07.240 --> 0:02:10.720 provide it through insurance companies. That workaround would now be 0:02:10.840 --> 0:02:15.600 optional under the current plan under the Trump administration. Proposal 0:02:15.600 --> 0:02:18.240 West not a proposal, wanted the effect immediately, but they 0:02:18.280 --> 0:02:21.760 are taking comments now. It's an interim final rule UM, 0:02:21.960 --> 0:02:25.919 and the exemption would be available to any other employer 0:02:25.960 --> 0:02:29.880 who was covered by the mandate. As let's talk about 0:02:29.880 --> 0:02:35.480 the federal government UM not prosecuting religious organizations for discrimination 0:02:35.560 --> 0:02:39.240 and the hiring and firing of employees, and does that 0:02:39.360 --> 0:02:45.960 extend to now to private businesses. Sure, So on Friday 0:02:46.040 --> 0:02:48.239 there was both a contraceptive role and then there was 0:02:48.280 --> 0:02:50.400 a second memo that came out from the Department of 0:02:50.440 --> 0:02:55.800 Justice which essentially issued twelve Principles of Federal Religious Freedom 0:02:55.880 --> 0:02:58.840 and Religious Liberty that all federal agencies now must follow 0:02:59.120 --> 0:03:02.320 when considering any program, rule, or guidance um And what 0:03:02.400 --> 0:03:04.400 the Department of Justice is really trying to do and 0:03:04.400 --> 0:03:07.200 the Trump administration has been trying to do as well 0:03:07.240 --> 0:03:11.000 as state and local legislatures, is to train enforcements of 0:03:11.240 --> 0:03:15.679 enforcement of non discrimination and civil rights protections as discrimination 0:03:15.800 --> 0:03:19.200 against religious rights and groups. And what's both concerning about 0:03:19.240 --> 0:03:21.560 this guidance is the fact that it's trying to give 0:03:21.600 --> 0:03:25.440 religious liberty supremacy over other co equal fundamental rights like 0:03:25.760 --> 0:03:29.839 equal protection and due process under the Constitution. So it's 0:03:29.919 --> 0:03:33.959 creating a more dangerous situations for already vulnerable communities like women, 0:03:33.960 --> 0:03:37.800 people of color, and LGBT communities while elevating and sort 0:03:37.800 --> 0:03:40.960 of tipping the sum on the scale towards religious liberty 0:03:41.520 --> 0:03:46.080 at the extent of other important fundamental rights in the constitution, Michael, 0:03:46.160 --> 0:03:48.720 the Justice Department has said that, you know, this is 0:03:48.760 --> 0:03:53.880 just a re explanation of existing law, and it doesn't 0:03:53.880 --> 0:03:58.440 really do anything different than what the law already is. 0:03:58.440 --> 0:04:01.840 Is that correct or is it really a broader interpretation 0:04:01.960 --> 0:04:05.560 of what religious liberty is. Well, it seems to be 0:04:05.640 --> 0:04:08.640 a broader interpretation. It's certainly a broader interpretation than was 0:04:08.680 --> 0:04:13.200 afforded by the Obama administration. Um. And also in terms 0:04:13.200 --> 0:04:16.200 of that, you know, getting away from the contraception mandate 0:04:16.240 --> 0:04:21.640 to the broader analysis. Uh, that would implicate uh lots 0:04:21.720 --> 0:04:25.360 of the different contexts, including the case that's pending before 0:04:25.360 --> 0:04:29.400 the Supreme Court, including uh involving the baker who denied 0:04:30.040 --> 0:04:34.320 making a cake for uh same sex marriage. Uh. And 0:04:34.440 --> 0:04:36.760 in that case one we think that's interesting. It's pending 0:04:36.760 --> 0:04:39.279 on the Supreme Court. Now it's primarily a free speech case, 0:04:39.320 --> 0:04:43.039 it's not primarily religion case. Uh. The religion case under 0:04:43.040 --> 0:04:46.880 existing law is very difficult because most corporations who have 0:04:47.000 --> 0:04:51.400 to comply with these public combinations must comply in all respects, 0:04:51.440 --> 0:04:54.880 and they don't aren't able to surgery the religious objection 0:04:55.000 --> 0:04:59.120 just because they personally don't want to provide the service. 0:04:59.279 --> 0:05:03.640 And the memo announce on Friday, and also the position 0:05:03.680 --> 0:05:07.440 that the the Trump administration has asserted in the Supreme 0:05:07.480 --> 0:05:11.120 Court UH as much broader and would provide a religious 0:05:11.160 --> 0:05:15.159 exemption to that individual UM if it were adopted. We 0:05:15.240 --> 0:05:17.640 are talking here on Bloomberg Law with Ash McGovern, the 0:05:17.720 --> 0:05:20.200 legislative and Policy director at the Center for Gender and 0:05:20.240 --> 0:05:23.080 Sexuality Law at Columbia Law School, and Michael sell Me, 0:05:23.200 --> 0:05:26.400 a professor of law at George Washington University Law School, 0:05:26.560 --> 0:05:29.400 about a memo issued UH last week by Attorney General 0:05:29.480 --> 0:05:32.480 Jeff Sessions that orders all federal agencies to take an 0:05:32.480 --> 0:05:36.120 expanse of view of religious liberty when they are enforcing 0:05:36.440 --> 0:05:39.120 federal law, or promulgating rules, or taking any of the 0:05:39.120 --> 0:05:43.320 actions at the federal government takes. Ash. One part of 0:05:43.360 --> 0:05:47.760 the memo says that I'm quoting here, religious organizations may 0:05:47.839 --> 0:05:51.480 choose to employ only persons whose beliefs and conduct are 0:05:51.480 --> 0:05:55.520 consistent with the organization's religious precepts. You know, on the 0:05:55.520 --> 0:05:58.080 one hand, you think, okay, so a church only has 0:05:58.080 --> 0:06:00.560 to hire a priest who believes in the religion in right, 0:06:00.960 --> 0:06:05.440 But I wonder how far does that sentence go in 0:06:05.560 --> 0:06:09.480 terms of how religious organizations can hire or people or not. 0:06:10.560 --> 0:06:14.160 That's a great point and it goes much further than churches. Unfortunately, 0:06:14.240 --> 0:06:16.839 So I think often, as we pointed out, when we 0:06:16.839 --> 0:06:19.960 think about safe based organizations, where we think about actions 0:06:19.960 --> 0:06:22.360 like this by the federal government was thinking about churches, 0:06:22.400 --> 0:06:26.520 but we should really be thinking about our nonprofit organizations 0:06:26.520 --> 0:06:29.800 and the organizations that received billions of dollars in federal 0:06:29.880 --> 0:06:33.599 contracts and grants from the federal government to provide services. 0:06:33.640 --> 0:06:35.720 So that you know, you think you can think more 0:06:35.720 --> 0:06:40.279 about Salvation Army or Catholic charities, or hospitals and health 0:06:40.279 --> 0:06:43.679 systems that make billions of dollars each year providing health 0:06:43.720 --> 0:06:46.279 care but are exempt from laws because they have a 0:06:46.320 --> 0:06:50.040 religious focus that would be otherwise applicable. So it's it's 0:06:50.120 --> 0:06:52.840 much broader than the sort of church issue, um, and 0:06:52.920 --> 0:06:56.320 it's impacts millions and millions of people. It's it's it's 0:06:56.440 --> 0:07:00.400 very significant at you, Michael. The Justice Department Sidness Statement 0:07:00.800 --> 0:07:04.360 disguidance does not authorize anyone to discriminate on the basis 0:07:04.400 --> 0:07:08.840 of race, ethnicity, national origin, sex, sexual orientation, or gender 0:07:08.880 --> 0:07:12.640 identity in violation of federal law or change existing federal 0:07:12.680 --> 0:07:17.480 and state protections. What is your response to that, Well, 0:07:17.760 --> 0:07:20.720 I think there are two different issues. One, if it 0:07:20.800 --> 0:07:25.520 were adopted, If their memo were adopted, it would dramatically 0:07:25.640 --> 0:07:28.680 change existing law. UM. There's an old case I think 0:07:28.720 --> 0:07:33.080 it was involving Bob Jones University where they lost their 0:07:33.080 --> 0:07:36.720 taxic them status because they were racially exclusive, and the 0:07:36.760 --> 0:07:40.160 court had no trouble finding that they should not qualify 0:07:40.280 --> 0:07:44.720 for taxis them status given their racial exclusion. That UM, 0:07:44.920 --> 0:07:50.280 and under this memo arguably UH they could their religious 0:07:50.280 --> 0:07:56.160 beliefs because it was a religious organization might change all that. 0:07:56.680 --> 0:07:58.520 Now here's the second part though, that I think a 0:07:58.560 --> 0:08:03.880 significant These are all well established legal principles. Now it's 0:08:03.920 --> 0:08:08.120 not the case that anyone can under existing law, anyone 0:08:08.160 --> 0:08:11.800 can claim to be a religious organization UH and get 0:08:11.800 --> 0:08:15.200 protection or get exemptions under Title seven. It's a very 0:08:15.320 --> 0:08:18.360 narrow category. And there's been lots of different case law 0:08:18.640 --> 0:08:21.520 UM involving that. A lot of them involved university, something 0:08:21.560 --> 0:08:24.320 like Georgetown University, which is a Catholic university, but not 0:08:25.520 --> 0:08:28.160 one that it qualifies as a religious organization, so they 0:08:28.200 --> 0:08:33.800 cannot typically only higher Catholics in jobs that don't involve religion. UM. 0:08:33.960 --> 0:08:37.320 And this memo, if they're adopted, would change all that. 0:08:37.360 --> 0:08:40.840 But I think the um, they don't have the authority, 0:08:41.040 --> 0:08:43.400 certainly in terms of the law to change it. This 0:08:43.480 --> 0:08:46.160 is and I think they were. They are going up 0:08:46.200 --> 0:08:49.760 against um, well established case law on something like the 0:08:49.760 --> 0:08:53.640 contraception many they have more room because that's a rule 0:08:53.880 --> 0:08:57.720 as opposed to establish case law. Well, speaking of roles, 0:08:57.760 --> 0:09:01.280 as you know, the memo set is meant to provide 0:09:01.280 --> 0:09:05.120 guidance to agencies when they promulgate rules to agencies that 0:09:05.240 --> 0:09:08.199 enforce things like the Johnson Amendment, for that prohibits political 0:09:08.200 --> 0:09:12.600 speech in churches. Um. And you know there's so there's 0:09:12.600 --> 0:09:15.199 a lot of places across the government that this concede 0:09:15.280 --> 0:09:18.560 this memo conceivably could affect the way people create or 0:09:18.720 --> 0:09:24.880 enforce rules and laws. Um is it? You know, there's 0:09:24.880 --> 0:09:27.160 a part of it that says that, um, you can't 0:09:27.200 --> 0:09:30.480 second the federal goverment can't second guess employers about things 0:09:30.520 --> 0:09:34.320 like whether providing contraception or presumably other things would cause 0:09:34.360 --> 0:09:37.400 them to violate their religious beliefs. So when all these 0:09:37.400 --> 0:09:40.679 federal regulators and prosecutors are in fact looking at all 0:09:40.720 --> 0:09:44.000 the things they're supposed to do or not do. How 0:09:44.120 --> 0:09:46.280 is it that they're going to make judgments about whether 0:09:46.400 --> 0:09:48.800 or not they have to accommodate a religious belief under 0:09:48.840 --> 0:09:52.360 this memo? Right? So, I think that's a great question, 0:09:52.440 --> 0:09:55.240 and my responses that they shouldn't be So. I think 0:09:55.520 --> 0:09:57.840 another key issue that I'd love to see some litigation 0:09:57.880 --> 0:10:00.520 around is the the Department of Justice doesn't have the 0:10:00.520 --> 0:10:03.360 authority to be making these sort of determinations. These are 0:10:03.400 --> 0:10:06.800 constitutional protections. UM. One of the federal laws that they cite, 0:10:06.840 --> 0:10:09.800 for example, the Religious Freedom Restoration Act, which is passed 0:10:09.840 --> 0:10:15.400 in specifically restores a legal standard for course to apply 0:10:15.920 --> 0:10:19.640 to to sort of balance these really important interests. So 0:10:19.679 --> 0:10:22.040 religious liberty is not the only interests and not the 0:10:22.080 --> 0:10:25.240 only right in the Constitution. We also have other important 0:10:25.800 --> 0:10:28.000 protections like the equal protection class and like to do 0:10:28.120 --> 0:10:31.160 process claws that courts should be looking at a very 0:10:31.320 --> 0:10:35.280 tact specific inquiry to determine which rights are most important 0:10:35.320 --> 0:10:37.920 and why in that case, so I would say, um, 0:10:38.080 --> 0:10:40.200 they're going to try to do it. I don't think 0:10:40.200 --> 0:10:42.400 it's their place to be doing this work. And I 0:10:42.400 --> 0:10:45.040 think that's one of the most fundamental issues and flaws 0:10:45.080 --> 0:10:47.160 with this guidance UM. And one other thing that I 0:10:47.160 --> 0:10:49.240 wanted to point out is it's really important to look 0:10:49.240 --> 0:10:52.680 at the context in which this guidance is being written. 0:10:52.720 --> 0:10:56.640 So the Department of Justice UM is actively going into 0:10:56.760 --> 0:10:59.440 court to try and dismantle decades of case law that 0:10:59.480 --> 0:11:04.160 protects LGBT people under the Constitution and under federal statutes 0:11:04.200 --> 0:11:06.840 like Title seven. So we know that this is not 0:11:07.040 --> 0:11:09.320 just about religious liberty. We know that this is not 0:11:09.400 --> 0:11:12.480 just about religious freedom. This is a concerted and organized 0:11:12.520 --> 0:11:16.400 effort and attacks on other people's civil rights and fundamental 0:11:16.440 --> 0:11:20.680 protections under the constitutions, particularly LGBT communities. Well, we're gonna 0:11:20.760 --> 0:11:24.120 leave it there. Thanks to Ash McGovern of, the director 0:11:24.240 --> 0:11:27.160 of the Center for Gender and Sexuality Law, Columbia Law School, 0:11:27.200 --> 0:11:29.680 and Michael sell Me, a professor of law at George 0:11:29.679 --> 0:11:32.520 Washington University Law School, for being with us here on 0:11:32.679 --> 0:11:34.000 Bloomberg Law