Executive Order Addresses Religious Freedom in the Workplace

LGBTQ individuals, Muslims assert that the attorney general has been given too much discretion

By Allen Smith, J.D. Jun 2, 2017
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​Organizations focused on religious liberty say that President Donald Trump's Executive Order Promoting Free Speech and Religious Liberty restricts religious freedom in the workplace by delegating too much leeway to Attorney General Jeff Sessions, who has a history of discriminating against lesbian, gay, bisexual, transgender and questioning (LGBTQ) individuals and Muslims. The groups don't trust Sessions to define religious liberty in a nondiscriminatory way.

"We are especially troubled by the fact that the order directs sensitive religious exemption decisions to be made by Attorney General Jeff Sessions, who has a long history of supporting Islamophobic measures, organizations and beliefs," stated Columbia Law School's Public Rights/Private Conscience Project and the Council on American-Islamic Relations (CAIR). The Public Rights/Private Conscience Project is a think tank that focuses on religious liberty rights and how they conflict with other fundamental rights to equality and liberty.

In October 2013, when Sessions was a senator representing Alabama and was ranking member of the Senate Budget Committee, he sent a letter to the National Endowment for the Humanities in part demanding a justification for why the group was promoting Islamic cultures at the expense of Christian and Jewish cultures. In December 2015, he voted for a religious litmus test for people entering the United States. And in an interview in June 2016, Sessions said in a statement on U.S. immigration policy that the country should address "the toxic ideology of Islam."

Religious Freedom Restoration Act

Richard Garnett, a professor at Notre Dame Law School in Indiana, said that the executive order includes a request to the Department of Justice that it take steps to ensure that its policies reflect a strong commitment to the religious freedom principles underlying the Religious Freedom Restoration Act (RFRA), a broad religious accommodations law. He added that the Justice Department "cannot change courts' interpretations" of civil rights laws.

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The executive order is vague, said Liz Reiner Platt, director of the Public Rights/Private Conscience Project. But it does direct the attorney general to issue guidance interpreting religious liberty protections in federal law. This presumably includes guidance interpreting the RFRA. She said that the Justice Department has previously misinterpreted the RFRA and provided exemptions from provisions of federal law banning recipients of government contracts from discriminating.

"Sessions could potentially issue guidance interpreting federal religious exemption laws such as RFRA to provide exemptions from other federal mandates," she said. "For example, he could say that an employer that believes it is immoral to hire a transgender person should be entitled to an exemption under RFRA from Title VII's prohibition of sex stereotyping, and therefore the EEOC [Equal Employment Opportunity Commission] should not attempt to bring an enforcement action against that employer." She noted that the American Civil Liberties Union (ACLU) and the EEOC argued against an employer that defended its termination of a transgender woman by relying on the RFRA. A company cannot rely on the religious beliefs of its owners to discriminate against an employee on the basis of her gender identity because this is prohibited sex stereotyping, the ACLU and the EEOC maintained.

A previous version of the order leaked to the press was tailored to give broad religious exemptions for LGBTQ discrimination and for denial of birth control coverage, said Jerame Davis, executive director of Pride at Work, a gay rights organization. "The new order, rather than being explicit, lays out a broad view of religious exemptions and [directs] the departments and agencies to determine what policies are in conflict with the order and to amend them," he said. "This obviously includes the original scope of the leaked order."

Religious Concerns

The executive order will favor majoritarian faiths, such as Christianity, at the expense of religious minorities, predicted the Public Rights/Private Conscience Project and CAIR in their joint statement. "Religious minorities are at particular risk of being coerced into abiding by or supporting dominant religious beliefs," they said. "This is especially true for minority religions that already face significant mistrust and discrimination," including Muslims and Sikhs as well as atheists.

The Department of Justice shouldn't be allowed to let religious objectors impose their beliefs on others, the organizations stated.

The conservative National Organization for Marriage was displeased with the executive order as well. "After repeated promises to people of faith that his administration would do 'everything in its power to protect religious liberty in our land,' President Donald Trump has now twice backed away from issuing an executive order to meaningfully protect Christians and other faithful citizens against discrimination," the group said in a statement. "Rather than tackle the issue himself, President Trump has instead punted to the Department of Justice where Attorney General Jeff Sessions has been charged with the responsibility of developing rules to protect the religious liberty rights of individuals and groups."

Protection for People of Faith

The White House defended its executive order. Deputy Press Secretary Sarah Sanders said that Americans "should be celebrating that people are being protected. That's what this executive order is about. It's not about discriminating, it's not about being against anyone, but it's simply about protecting people of faith, and that's people of all faiths across the country. That's something that the president heard from religious leaders of all diversities during his time on the campaign. It's something that he promised to do. And that's something he's fulfilled."

 

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