The government's new religious freedom guidance: What does it mean?

Washington D.C., Oct 6, 2017 / 14:31 pm

All eyes were on the Department of Health and Human Services on Friday, as the Trump administration announced a major broadening of exemptions to the federal contraception mandate, prompting cheers from religious freedom proponents nationwide.

Less noticed was another critical development in the U.S. religious liberty landscape: Attorney General Jeff Sessions issued government-wide legal guidance outlining 20 principles of religious liberty that, the Department of Justice says, should govern all administrative agencies and executive departments in their work.

Sessions had been instructed to "issue guidance interpreting religious liberty protections in federal law" by an executive order signed by President Trump in May.

The 25-page document released by the attorney general will please many religious liberty advocates. Its bold language highlights the crucial role of religious freedom in American life. It could also have an impact on pending legal disputes across the country.

Early in the memo, the guidance asserts, "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." Religious freedom proponents have argued for this definition avidly in recent years, amid fears that the idea was being eroded, especially as the phrase "freedom of worship" often replaced "freedom of religion" in the Obama administration.

The document goes on to state that religious liberty extends not only to persons, but to organizations, and that religious freedom is not surrendered when an individual participates in the marketplace or interacts with government – two key points argued in the HHS mandate debate over the last six years.

This second point – that individuals do not have to remove themselves from civil society in order to retain their right to religious freedom – could also have implications in several high-profile lawsuits, largely revolving around the freedom of service providers such as florists, cake bakers, and photographers to decline same-sex weddings, based on their religious beliefs about marriage.

Six of the 20 religious liberty principles in Sessions' document are dedicated to the Religious Freedom Restoration Act, known as RFRA.

Enacted in 1993, RFRA is one of the primary legislative pillars upon which religious freedom arguments have rested in the last two decades. It says that the federal government may not substantially burden the free exercise of religion, unless there is a compelling state interest in doing so, and it is carried out in the least-restrictive manner possible.

RFRA applies only to the federal government, although in recent years, similar laws have increasingly been proposed or passed in state legislatures.

The guidance explains that RFRA "applies to all sincerely-held religious beliefs," and the government does not have the authority to second-guess the reasonableness of a religious conviction. It affirms that in evaluating RFRA claims, courts must use what is known as "strict scrutiny" – the highest level of judicial review, under which only the most serious of government interests are permitted to infringe upon a fundamental constitutional right.

It also says that the law "applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties," making it clear that RFRA applies in cases such as the HHS mandate.

The document takes a firm stand in insisting that RFRA be taken seriously and interpreted robustly. It's worth noting that this is a return to ideas widely held just 25 years ago: when RFRA was enacted in 1993, it has nearly unanimous support from both parties and was signed into law by Bill Clinton.

Also significant, the guidance explicitly affirms the right of religious organizations to "employ only persons whose beliefs and conduct are consistent with the employers' religious precepts." This is a victory for faith-based employers, among them Catholic schools who have faced opposition for asking employees to sign codes of conduct agreeing to abide by Catholic teaching on issues such as sexuality.    

Today's guidance also confirms that government cannot interfere with the autonomy of religious organizations. This idea was reinforced by the Supreme Court in Hosanna-Tabor v. EEOC – a rare unanimous ruling in 2012 in which the court upheld the "ministerial exception" that allows religious organizations to hire and fire ministers without interference from the government.

Finally, the document released by Sessions says that religious organizations must have equal footing in applying for federal aid or grant programs – they may not be denied participation in these programs when the money is going toward activities that are not explicitly religious in nature.

This has been an important issue in the weeks after Hurricane Harvey with a group of Houston churches suing the Federal Emergency Management Agency, claiming they had been denied disaster relief grants due to their religious status.

The principle was also at play earlier this year, when the Supreme Court ruled in favor of a Lutheran church that was seeking to make safety improvements on its playground through a state reimbursement program. The church had initially been turned away because of its religious affiliation.

Now that the attorney general has issued the guidance, it is up to each agency and department to implement the principles as they make employment decisions, develop regulations, administer programs and write up contracts and grants.

The fight over the proper role of religious liberty in the nation is far from over, however. The document has already been criticized by its opponents as oppressive to women and the LGBT community.

The broad effect of the guidance will continue to unfold in the coming months. Challenges to it will undoubtedly arise as well. The ultimate outcome remains to be seen. But in the meantime, religious liberty proponents can find encouragement in some of the strongest language on the issue coming from a presidential administration in decades.