Department of Justice Issues Federal Guidelines Restoring Religious Liberty
By M.H. Cavanaugh
Christian Action League
October 12, 2017
WASHINGTON, D.C. – “This news is astounding. We’ve seen so much of religious liberty diminished in recent years. What the President has done to restore our God-given right to practice our faith is not just a breath of fresh air but more like oxygen to someone who had lost his ability to breathe,” said Dr. Mark Creech, executive director of the Christian Action League.
Dr. Creech was talking about last Friday’s announcement by U.S. Attorney General Jeff Sessions regarding federal guidelines that pertain to President Trump’s executive order (Order No. 13798) issued in May to protect religious freedoms. The guidance by the U.S. Department of Justice is directed to all administrative agencies and executive departments of the United States government and it interprets religious liberties in Federal law.
Sessions said, “Every American has the right to believe, worship, and exercise their faith. The protections for this right, enshrined in our Constitution and laws, serve to declare and protect this important part of our heritage. As President Trump said, ‘Faith is deeply imbedded into the history of our country, the spirit of our founding and the soul of our nation…[this administration] will not allow people of faith to be targeted, bullied or silenced anymore.’”
Alliance Defending Freedom, a legal organization that advocates for the right of people to live out their faith, said the “guidance is much needed as it seems many federal agencies fail to sufficiently respect the protections of religious freedom in our Constitution and laws.”
Josh Gersten, a writer for Politico described the guidelines as “a muscular view of religious freedom rights.”
In an alert about the new guidelines, The American Family Association (AFA) noted two examples that demonstrated the way religious liberty was infringed upon by the Obama administration.
In July of 2016, President Obama instructed his administration to rewrite executive regulations nine separate times to ensure that the Little Sisters of the Poor (nuns) were forced to either violate their consciences by helping to distribute abortifacients or be fined $70 million annually and ultimately be forced out of business. Their Christian convictions and the services they were providing to many people in need were of little consequence to President Obama’s vision for expanding so-called abortion rights.
A USDA employee threatened Don Vander Boon, the owner of West Michigan Beef Company with closure because he left Christian literature on the breakroom table which explained that marriage is between one man and one woman. The Obama administration’s U.S. Department of Agriculture said “it would not send meat inspectors to their business as long as they offered literature in their breakroom supporting biblical marriage as only between a man and a woman,” writes AFA.
The memorandum from the office of the Attorney General notes 20 key principles for protecting religious liberty. Explanations are in italics where the meaning may not be explicitly clear:
- The freedom of religion is a fundamental right of paramount importance, expressly protected by federal law.
- The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.
- The freedom of religion extends to persons and
- Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government.
- Government may not restrict acts or abstentions because of the beliefs they display. Example: If the government allows political leaflets to be distributed in a park, the government can’t prohibit religious leaflets from being distributed in the same park.
- Government may not target religious individuals or entities for special disabilities based on their religion. Example: The Supreme Court has ruled that if the government provides reimbursement for scrap tires to replace child playground surfaces, it may not deny participation in that program to religious schools.
- Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws. Example: The IRS cannot enforce the Johnson Amendment – which prohibits 501c3 non-profit organizations from intervening in a political campaign on behalf of a candidate – against a religious non-profit organization under circumstances in which it would not enforce the amendment against a secular non-profit organization.
- Government may not favor or disfavor particular religious groups.
- Government may not interfere with the autonomy of a religious organization.
- The Religious Freedom Restoration Act of 1993 prohibits the federal government from substantially burdening any aspect of religious observance or practice unless imposition of that burden on a particular religious adherent satisfies strict scrutiny. RFRA, which is currently federal law, prohibits the federal government from substantially burdening the free exercise of one’s religion. And, if it is deemed necessary to do so, the government must have demonstrated a compelling government interest and the burden must be applied in the least restrictive means possible.
- RFRA’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit organizations. Example: The Supreme Court has said that Hobby Lobby (a for-profit organization) is protected by RFRA.
- RFRA does not permit the federal government to second-guess the reasonableness of a religious belief. Example: The Department of Health and Human Services cannot second-guess the determination of a religious employer who doesn’t want to provide contraceptive coverage to its employees because it believes it would place the employer in violation of his religious beliefs.
- A government action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice. Example: An HHS regulation that requires an employer to provide insurance coverage for contraceptive drugs in violation of their religious beliefs or face significant fines substantially burdens their religious practice.
- The strict scrutiny standard applicable to RFRA is exceptionally demanding. In other words, only those government interests of the highest order can ever outweigh a claim to the free exercise of religion.
- RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties. Whenever a third party is relevant to a RFRA analysis, the third party is not necessarily rendered as having no exemption available.
- Title VII of the Civil Rights Act of 1964, as amended, prohibits covered employers from discriminating against individuals on the basis of their religion. Employers can’t classify an employee or an applicant for a job that would in any way deprive them of an employment opportunity. This protection, however, does not apply in the same manner to religious employers, who have certain constitutional and statutory protections for religious hirings.
- Title VII’s protection extends to discrimination on the basis of religious observance or practice as well as belief, unless the employer cannot reasonably accommodate such observance or practice without due hardship on the business. Example: Employers are required to adjust employee work schedules for Sabbath observance, religious holidays, and other religious observances unless doing so would create an undue hardship.
- The Clinton Guidelines on Religious Exercise and Religious Expression in the Federal Workplace provide useful examples for private employers of reasonable accommodations for religious observance and practice in the workplace. President Clinton, during his administration, issued guidelines on religious exercise and expression in the federal workplace, allowing employees to keep religious materials on their desks and read them during breaks, discuss their religious views, display religious messages on their clothing or wear religious medallions, invite others to church, except that such forms of free speech become excessive or harassing.
- Religious employers are entitled to employee only persons whose beliefs and conduct are consistent with the employers’ religious precepts. Example: A Baptist secondary school may choose to employ only practicing Baptists, only practicing Christians, or only those willing to adhere to a code of conduct consistent with the precepts of the Baptist community.
- As a general matter, the federal government may not condition receipt of a federal grant or contract on the effective relinquishment of a religious organization’s hiring exemptions or attributes of its religious character. In other words, Religious organizations are entitled to compete on an equal footing for federal assistance used to support government programs.
Dr. Creech said a leftist media and progressive politicians and groups are bitterly complaining about these guidelines. “But the truth of the matter is the President’s administration is not really plowing new ground here,” he declared. “What’s happening is actually a restoration of existing law.”