In a further escalation of the Trump administration’s drive to privilege purported religious views over nondiscrimination and other laws and regulations applicable to the general public, Attorney General Jeff Sessions has announced the creation of a Religious Liberty Task Force.
Speaking Monday at a Department of Justice Religious Liberty Summit, the attorney general lashed out at a secular culture he and other Christian fundamentalists have in recent decades found themselves out of step with, saying, “A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom. There can be no doubt. This is no little matter. It must be confronted and defeated.”
Sessions got specific about the dangers he sees, saying, “We’ve seen nuns ordered to buy contraceptives,” in reference to provisions of the Affordable Care Act that requires employers to include contraceptive coverage in their health benefit plans.
He also said, “We’ve all seen the ordeal faced so bravely by Jack Phillips,” the Colorado baker who refused to sell a wedding cake to a gay couple. Phillips was vindicated in part by the Supreme Court, which ruled in June that Colorado civil rights commissioners had shown undue prejudice against his religious claims in deliberations over whether he violated state public accommodations law that forbids anti-gay discrimination. The high court, however, did not rule on the underlying question of whether someone can claim a blanket religious exemption from sexual orientation nondiscrimination laws.
Religious opt-outs have become a new line of attack against LGBTQ rights, with right-wing litigation groups such as Alliance Defending Freedom seeking every opportunity to challenge laws and policies based on First Amendment free exercise and free speech claims. Most state courts that have considered such arguments in reference to public accommodation laws have rejected them, but so far the Supreme Court has shied away from taking a stance — though the issue will no doubt come before it in unvarnished form at some point soon.
Concern over how the high court might view that question has been heightened ever since its controversial 2014 Hobby Lobby decision, where it found that a closely-held for-profit enterprise could claim a religious exemption from the contraception mandate Sessions talked about this week. Those concerns only grew with the confirmation last year of Supreme Court Justice Neil Gorsuch — maintaining the conservative slot long held by the late Antonin Scalia — and now the nomination of DC Circuit Court Judge Brett Kavanaugh, who many worry will not carry on the consistent gay rights empathy shown by Anthony Kennedy.
President Donald Trump’s success at winning confirmation of lower court federal judges is also fueling concerns about whether the federal courts can be counted to rule as state courts have in almost uniformly upholding the integrity of nondiscrimination protections. As the New York Times reported this week, Trump has now placed one out of every seven judges on the nation’s federal courts of appeal. The newspaper quotes Judge Kyle Duncan, a new member of the New Orleans-based Fifth Circuit Court of Appeals, saying that marriage equality “imperils civic peace.” Newly minted Sixth Circuit Court of Appeals Judge John K. Bush, based in Cincinnati, likened abortion to slavery.
With Sessions explaining that his new task force will assist him in providing guidance to all Executive Branch agencies “on how to apply the religious liberty protections in federal law,” LGBTQ advocates were quick to respond.
Noting that 85 percent of continuing care communities in the US are religiously affiliated, Michael Adams, CEO of SAGE, or Services and Advocacy for GLBT Elders, in a written statement, said, “Attorney General Jeff Sessions’ announcement of a so-called Religious Liberty Task Force at the Department of Justice is one more effort by this administration to obliterate anti-discrimination protections for LGBT people. LGBT elders — who rely on religiously affiliated providers for non-discriminatory care — have played a huge role in the ‘changing cultural climate’ that the attorney general condemns. They will not go back into the closet so that this administration can pander to the forces of intolerance and bigotry.”
Sarah Warbelow, the legal director at the Human Rights Campaign, also in a written statement, said, “This taxpayer funded task force is yet another example of the Trump-Pence White House and Jeff Sessions sanctioning discrimination against LGBTQ people. Over the last 18 months, Donald Trump, Mike Pence, and Jeff Sessions have engaged in a brazen campaign to erode and limit the rights of LGBTQ people in the name of religion. The attorney general standing shoulder-to-shoulder this morning with anti-LGBTQ extremists tells you everything you need to know about what today’s announcement was really all about.”
