Category Religious Freedom and Rights
Title Administration Religious Liberty Guidance: A Major Step Forward
Preview Administration Religious Liberty Guidance: A Major Step Forward

Administration Religious Liberty Guidance: A Major Step Forward

President Donald Trump has made religious liberty a keystone of his presidency. During this year's National Day of Prayer observances on May 4, 2017, the president issued an executive order directing the Department of Justice (DOJ) to issue guidance on religious liberty. To considerable public appreciation, the DOJ released expansive guidance on October 6, 2017, in the form of legal memoranda that lay out "20 key principles of religious liberty." The guidance "explains that agencies should use these principles to protect religious liberty in all aspects of their work, including as employers, rule-makers, adjudicators, contract- and grant-makers, and program administrators."

The action gained widespread praise. Sen. James Lankford (R-Oklahoma) said, "I applaud today's guidance issued by the Department of Justice and the clarity it provides for a fundamental American right—religious freedom. As the guidance notes, 'religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. It also encompasses religious observance and practice.'"

The U.S. Conference of Catholic Bishops issued a statement October 12th noting that "The Attorney General's guidance helpfully reaffirms that the law protects the freedom of faith-based organizations to conduct their operations in accordance with their religious mission."

And the Southern Baptist Convention's Ethics and Religious Liberty Commission likewise praised the initiative in an October 6th online article: "The guidance from the Department of Justice lays out the bedrock principle of freedom and placed it back in the national dialogue. We welcome a continued substantive discussion about religious liberty, because we believe that religious liberty is in the best interest of all Americans."

The DOJ guidance introduces its 20 principles with a ringing summary of the importance of religious liberty, calling it "a foundational principle of enduring importance" and quoting Madison's Memorial and Remonstrance Against Religious Assessments: "the free exercise of religion 'is in its nature and unalienable right' because the duty owed to one's Creator 'is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.'" It is not merely personal or restricted to worship, but "encompasses religious observance and practice" and "therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity."

The 20 principles are listed below, but it is worth noting some key points. First and foremost is principle 19, which bears directly on Christian education and is very forthright in asserting religious hiring rights: "Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers' religious precepts." Notice that conduct must be consistent with the employer's faith, not only a stated belief. Using the example of a Lutheran secondary school, the principle makes clear the widespread latitude a school has: it may "choose to employ only practicing Lutherans, only practicing Christians, or only those willing to adhere to a code of conduct consistent with the precepts of the Lutheran community sponsoring the school."

Another point to consider is the following caveat, which accompanies the guidance:

This Guidance does not resolve any specific cases; it offers guidance on existing protections for religious liberty in federal law. The Guidance does not authorize anyone to discriminate on the basis of race, ethnicity, national origin, sex, sexual orientation, or gender identity in violation of federal law or change existing federal and state protections.

That said, Christianity Today (10/6/2017) quotes law professor and religious liberty scholar Thomas Berg: "Although the memo does not overturn the Obama executive order prohibiting sexual-orientation discrimination by government contractors, it signals a hospitable attitude toward accommodating religious-liberty objections by religious organizations in the context of contracts or grants."

Further, as the publication points out, " While critics have characterized such protections as a 'license' to discriminate, religious liberty experts state that the memo—while a major move—does not do everything that advocates have hoped or that opponents have feared." For example, the guidance is effective only as long as future presidents decide not to change it.

To that point, Heritage Foundation religious liberty legal expert Emilie Kao points out in an October 6th analysis that

The Trump administration has fulfilled its promise to uphold religious freedom during the president's time in office. But, Americans need our representatives to provide permanent, robust protections of our first freedom through legislation.

Congress can pass the First Amendment Defense Act to protect individuals and groups from being penalized by the federal government in tax treatment as well as in accrediting, loans, licensing, distribution of grants and contracts, and employment because of their religious beliefs that marriage is between one man and one woman.

In addition, there remain many other battlegrounds on religious liberty matters. Again, from Christianity Today

"This does not break new ground on the wedding vendor cases," said Douglas Laycock, professor of law and religious studies at the University of Virginia. "It does not take a clear position on the reach of the free exercise clause."

Some of the most high-profile religious liberty fights in recent years, as Laycock mentioned, have been issues of accommodation for LGBT individuals, such as cases involving wedding photographers, caterers, and bakers.

Legal expert Laycock's overall summary on the matter?

Maybe the most important thing here is the commitment to review all new regulations for compliance with RFRA [Religious Freedom Restoration Act] and religious liberty principles. Except for the contraception regulations, federal agencies have just ignored RFRA and waited to see if anyone sued them. Most regulations don't affect religious liberty, and maybe no amount of review will enable agencies to anticipate the unusual religious practice that might be burdened. But if they follow through on this—always a big if, and especially with this administration—it is a potentially big change.

That "potentially big change" is worth celebrating. For Christians and religious believers of all kinds, it is also worth establishing the principles of the DOJ guidance more securely for future generations. As Emilie Kao, the Heritage Foundation expert, points out, "All Americans benefit from the services that are provided by an estimated 350,000 religious congregations that serve over 70 million people each year. In addition, faith-based organizations provide services to the U.S. economy that are valued at $1.2 trillion, more than Google, Apple, and Amazon combined. These groups—whether they are Jewish, Christian, Muslim, or other—should be able to serve their communities without sacrificing their religious beliefs."

No doubt, James Madison would agree.

LLU 28.2

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

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