Attorney General Jeff Sessions instructed federal agencies and attorneys on Friday to protect religious liberty in a broad, yet vague, guidance memo that critics fear could give people of faith — including government workers and contractors — a loophole to ignore federal bans on discrimination against women and LGBT people.



The guidance says the government cannot unduly burden people or certain businesses from practicing their faith, noting, “The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.”

The policy does not create new law, but rather interprets how the government should construe the Constitution and existing federal law. It comes on the heels of the Justice Department weighing in on a religious liberty case, in which lawyers under Sessions argued in a brief to the US Supreme Court that a Christian baker had a First Amendment right to deny a gay couple a cake for their wedding.

The guidance memo, which avoided mentioning pending cases by name but did refer to the ongoing controversy over contraception coverage in Obamacare, directs federal agencies to observe 20 “principles of religious liberty.” Among them, it says that religious employers are entitled to hire only workers whose beliefs and conduct are “consistent with the employer's’ religious beliefs” — a directive adopted under former President George W. Bush — and that some of the legal principles extend “not just to individuals, but also to organizations, associations, and at least some for-profit corporations.”

The US Department of Health and Human Services on Friday announced new rules that will allow employers with a “moral” or “religious” objection to stop covering contraception for employees.

One portion of the guidance directs lawyers in the Justice Department to scrutinize all proposed federal regulations, saying that the department won’t concur in the issuance of any rule that conflicts with the religious guidance.

The Human Rights Campaign, the country’s largest LGBT group, issued a statement calling the guidance a “sweeping license to discriminate that puts millions of LGBTQ Americans at risk.”

The group contends the policy could allow federal contractors refuse service to LGBT customers, could let workers at the IRS refuse to process paperwork for same-sex couples, and may open a door for organizations to discriminate in health care and benefits for employees. The House LGBT caucus, meanwhile, called the guidance a "clear attack on the rights of LGBT community" in a statement.

The policy is the Trump administration's latest offering to religious conservatives, who reluctantly coalesced around Donald Trump’s 2016 campaign and then, after he won the election, studded his transition team with advisors. Evangelical activists have clamored for President Trump to rescind Obama-era policies against LGBT discrimination, or, failing that, let religious objectors opt out.

In developing the guidance, the Justice Department consulted with religious and political groups with a history of opposing protections for LGBT people. A Justice Department official said those groups included the Mormon Church, the Alliance Defending Freedom, and the US Conference of Catholic Bishops.

The Alliance Defending Freedom’s president, Michael Farris, praised the Trump administration for the policy, saying it “helps protect that First Amendment freedom.” He added in a statement that it “simply directs the federal government to adhere to its legal and constitutional obligation to respect existing religious freedom protections.”

The Justice Department also consulted with the the American Civil Liberties Union, which supports LGBT rights. An official said the department did not consult “specifically” with LGBT groups.



Louise Melling, deputy legal director at the American Civil Liberties Union, was still reviewing the guidance early Friday afternoon. But she told BuzzFeed News she was concerned it prioritizes employers over the individuals nondiscrimination policies are designed to protect — such as women seeking contraception coverage and LGBT workers.

“This guidance has principles that, in myriad ways, would allow religious freedom to be used to harm others,” she told BuzzFeed News, citing a provision that says harm to a third party doesn’t neutralize an entity’s religious defense. “You could imagine an employer arguing that the Religious Freedom Restoration Act allows them to not comply with a policy barring discrimination on the basis of sexual orientation and gender identity.”

Melling was also unsure if the Justice Department believes provisions about religious organizations could be extended to protect non-religious businesses.

“We have to wait and go see how they interpret it,” she added. “You can trust we will be watching it.”