Metro Weekly

Coalition to Obama: Rescind Bush-era “religious freedom” memo

Advocates argue memo's interpretation is flawed and justifies discrimination

Photo: Barack Obama. Credit: Christopher Dilts/Obama for America.
Photo: Barack Obama. Credit: Christopher Dilts/Obama for America.

A coalition of 130 LGBT or allied organizations is urging President Obama to rescind a memo from George W. Bush’s administration that they claim has been used to justify taxpayer-funded discrimination.

In a letter addressed to Obama, the groups say the memo in question, which was issued in 2007 by the Office of Legal Counsel, “reaches the erroneous and dangerous conclusion that the Religious Freedom Restoration Act of 1993 (RFRA) provides a blanket override of a statutory nondiscrimination provision.”

Signatories of the letter include Americans United for Separation of Church and State, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, the Human Rights Campaign, and a variety of religious and civil rights groups.

“RFRA was intended to provide protection for free exercise rights, applying strict scrutiny, on a case-by-case basis, to federal laws that substantially burden religious exercise,” the coalition’s letter reads. “RFRA was not intended to create blanket exemptions to laws that protect against discrimination. Yet, in contrast to this, the OLC Memo relies on flawed legal analysis and wrongly asserts that RFRA is ‘reasonably construed to require’ a federal agency to categorically exempt a religiously affiliated organization from a grant program’s explicit statutory nondiscrimination provision, thus permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination.”

One of the ramifications of the Bush-era OLC memo is that it is being used to permit religiously-affiliated organizations that receive Violence Against Women Act (VAWA) funds to use religion as one criterion when hiring employees, despite VAWA’s clear prohibitions against such discrimination. The coalition also says the memo’s broad interpretation is being used to undercut Obama’s executive order barring contractors from discriminating LGBT workers. Lastly, the coalition argues, some grantees and contractors are trying to extend the memo’s reach beyond hiring, citing the memo to create a blanket exemption justifying their refusal to provide certain services or referrals, such as medical care for unaccompanied immigrant children who have suffered sexual abuse.

“The Bush-era policy is based on faulty legal assumptions and is being used to put the government in the business of funding discrimination,” said David Stacy, government affairs director for the Human Rights Campaign. “By rescinding this flawed memo, President Obama can make clear that taxpayer money cannot be used for unjust discrimination — period. The President has an unprecedented legacy of advancing fairness and equality for the LGBT community, and with the limited time he has remaining in office, we urge him to solidify that legacy by taking action on this critically important issue.”

The coalition concluded its letter asking Obama to carefully review and correct the interpretation of and extent to which RFRA applies.  

“Contrary to the conclusion in the OLC Memo, RFRA is not a tool to categorically override statutory protections against religious hiring discrimination,” the groups write. “Nor does it create an absolute free exercise right — without regard to countervailing compelling interests, as required by RFRA — to receive government grants without complying with applicable regulations that protect taxpayers and participants in federally funded programs. We accordingly request that the OLC Memo be reviewed and its erroneous and dangerous interpretation of RFRA be reconsidered as soon as possible.”

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