During Wednesdayâ€™s Justice Department Oversight Hearing, Sen. Dick Durbin (D-IL) asked Attorney General Jeff Sessions about the Department of Justiceâ€™sÂ new â€śreligious freedomâ€ť guidance. In particular, Durbin was concerned about how the guidance might enable anti-LGBTQ discrimination, asking Sessions to respond to several hypotheticals.
â€śCould a social security administration employee refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse?â€ť Durbin asked.
There was a long pause. â€śThatâ€™s something I never thought would arise, but I would have to give you a written answer to that, if you donâ€™t mind.â€ť Sessions responded.
Durbin countered, â€śIâ€™d like to have that,â€ť then launched right into another hypothetical. â€śCould a federal contractor refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts?â€ť
â€śLikewise, but I would say to you â€” are you citing Title VII for this? Or the guidance? Iâ€™m not sure thatâ€™s covered by it, but Iâ€™ll look.â€ť
It is highly unbelievable that Sessions had never considered these examples prior to Wednesday. More than two years ago, when he was still in the Senate, Sessions was one of theÂ original co-sponsorsÂ of theÂ First Amendment Defense ActÂ (FADA), a bill that would grant those who have religious objections to same-sex marriage a license to discriminate. Many of the provisions in the new guidance mirror FADAâ€™s language.
- [It would] permit government employees to discriminate against married same-sex couples and their families â€“ federal employees could refuse to process tax returns, visa applications, or Social Security checks for all married same-sex couples.
- [It would] allow federal contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people or anyone who has an intimate relationship outside of a marriage.
Those are nearly identical to the hypotheticals Durbin asked Sessions to respond to on Wednesday. Still, years after theyâ€™d been highlighted by advocacy groups, Sessions claimed they had somehow never occurred to him before.
After Sessionsâ€™ dodged Durbinâ€™s hypotheticals, the senator asked the attorney general to comment about the fact that â€śpeopleÂ areÂ discriminating in the name of their own personal religious liberty.â€ť
Yes, I would say that wherever possible, a person should be allowed to freely exercise their religion and not to carry out activities that further something they think is contrary to their faith. But at the same time, if you participate in commercial exchanges, you have limits on what you can do under those laws â€” public accommodation type laws. And so the balance needs to be properly struck â€” and I think we have. Those issues were discussed as we wrestled with this policy.
Itâ€™s unclear with whom Sessions discussed those issues. The Department of Justice apparently held â€ślistening sessionsâ€ť, but has refused to name which groups it consulted. The reason the public even knows these consultations took place at all is because the Alliance Defending Freedom â€” an anti-LGBTQ hate group that defends business owners who discriminate and challenges nondiscrimination protections in the name of â€śreligious freedomâ€ť â€”Â bragged that it had participatedÂ in them.
Given Sessions said in an interviewÂ last weekÂ that he believes such discrimination should be allowed in the case of the anti-gay baker whose case is headed to the Supreme Court, itâ€™s not hard to imagine how he might respond to Durbinâ€™s hypotheticals, if pressed.
This article was originally published at ThinkProgress on October 18, 2017. Reprinted with permission.Â
About the Author:Â Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students. He can be reached at firstname.lastname@example.org.