Robert George reflects on Trump admin's latest religious liberty moves

Washington D.C., Oct 9, 2017 / 14:59 pm

Two sets of announcements by the Department of Justice and the Department of Health and Human Services issued Friday both promise to broaden religious freedom protections in the United States.

The first announcement, by the HHS department, broadens the religious freedom exemptions to the department's contraception mandate, which has been facing federal lawsuits from conscientious objectors since its introduction in 2011.

The second announcement was a memo issued by the Department of Justice, in which Attorney General Jeff Sessions explained 20 legal principles all government agencies should consider when dealing with religious freedom concerns.

Neither announcement will automatically resolve religious freedom cases currently within the court system.

In an Oct. 6 interview with CNA, Robert George, a professor of constitutional law at Princeton University and visiting professor at Harvard University, explained the implications of these two announcements for religious freedom supporters throughout the country.

Can you walk us through an overview of what the new HHS mandate adjustment and Department of Justice rules mean for religious freedom?

I think this is a big day for religious freedom. I see much greater value in the guidance that has been issued today than in the executive order on religious freedom from a few months ago, which I was very disappointed in. I felt that order was essentially meaningless.  [Ed. note: On May 4, 2017, the White House issued the "Presidential Executive Order Promoting Free Speech and Religious Liberty.]

The guidance given today is, I think, genuine, and I think it is very likely to make a positive difference.

The administration goes clearly on the record and instructs all relevant agencies of the government that the Religious Freedom Restoration Act applies even where a religious entity seeks an exemption from a requirement that the entity confer benefits on third parties. This is a big point in dispute between the two sides in the debate over religious freedom. The administration comes down squarely in favor of what I believe is the correct view.

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Another key point the guidance makes clear is that religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employer's religious precepts.

I interpret that to mean that an employer may, if the religious employer chooses for religious reasons, choose to employ only members of its own faith. But it also means that the employer, if it chooses on the basis of its religious faith, can choose to hire people who are not of the same faith, but limit those employment opportunities to prospective employees whose conduct is in line with the moral teachings of the faith. Now this is very important.

It means, for example, that a Catholic school could say, "We don't insist on hiring only Catholics to be teachers in the school. Perhaps we insist on Catholics as teachers of religion, since it's a Catholic school, but we are happy to hire a math teacher, a social studies teacher, or a literature teacher who is Hindu or Protestant or Jewish or Mormon or Muslim."

But, even if they choose to do that, [a Catholic employer] can choose to employ only people from their own faith or other faiths who live their lives in line with Catholic moral teaching. So if for example the school says, "We do not want to employ people who are living in a cohabiting partnership outside of marriage," under this guidance, as I interpret it, the employer is entitled to do that, and that's protected as a matter of the employer's religious freedom. This is a very important point.

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I do have a question about point 20 [of the memo's 20 points for consideration]. It has to do with the first word – "generally." The point says, "generally, the federal government may not condition federal grants or contracts on the religious organization altering its religious character beliefs or activities."

I don't know what the exceptions are. I assume "generally" is meant to state a rule, but also to contemplate that there are exceptions to the rule. I think we need clearer guidance from the administration and from the Justice Department about the conditions under which the federal government may legitimately condition federal grants or contracts on a religious organization altering its religious character, beliefs, or activities.

Since it's presented as a conditional norm, not as an absolute norm, we really need some clarity about what the conditions are, or what the exceptions are. And I cannot find that clarity in in the material released today.

I'm glad you brought up the previous Executive Order and its shortcomings. Could you briefly explain what your concerns with the order were, for those who are unfamiliar?

There was very little in the Executive Order issued in May that was actually operative in such a way as to protect everybody's religious freedom.

To the extent that there was much operative, it had mainly to do with the interpretation and application of the Johnson Amendment, which forbids political advocacy of certain sorts by churches.

I said at the time that the Johnson Amendment, while problematic both constitutionally and as a policy matter, was not among the top 20 items on a list of genuine concerns about religious freedom. It's very rarely, if ever, enforced. It does have something of a chilling effect, which is why some would like to get rid of it. But those who have not been chilled by it have mostly been left unmolested by the government. So it was not a problem in desperate need of fixing.

There were a lot of things left out, like the protection of employers against being forced to hire people who were in same-sex partnerships, for example, or other sorts of sexual partnerships – perhaps cohabiting opposite sex partners without the benefit of marriage-where the employer's faith judged those kinds of partnerships to be immoral.

There was nothing in the May executive order to protect employers in those domains. So what we see today goes in the right direction on a number of those issues.

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Now I know that the preparatory material for the guidance says that this guidance does not resolve any specific cases. It offers guidance on existing protections in religious liberty and federal law. Of course there are cases that are pending. So the proof will be in the pudding.

We need to know whether government officials will interpret these guidance points in ways that will cause them to relent in attempting to limit religious freedom. I certainly hope they will, but by its own terms, this guidance does not dictate to any official that he or she must resolve a specific case in a particular way. It says, directly, "this guidance does not resolve any specific cases."

Since that's true, we'll need to know how officials interpret the guidance and apply it to specific cases. That will be the proof. That will be the proof in the pudding.

We'll see whether these cases are resolved in ways that are respectful of religious freedom, or whether these guidance points are treated as if they're meaningless, and officials carry on with cases in the way that some have been carrying on with these cases: in ways that limit the religious freedom, or attempt to limit the religious freedom, of these employers.

There are some important points that have been well-established, but it's good to have them reiterated since they remain controversial.

An example of that is that the freedom of religion extends to organizations as well as individuals.  There's a view that says religious freedom rights extend only to individual persons and not to organizations, like churches, schools, religiously based social service providers, and so forth.

This guidance makes very clear that this administration's position is that freedom of religion extends to religious organizations and not just individuals, so that's good. It's not new, but it's good.

Switching gears to the changes to the HHS mandate: how does this adjustment impact the longstanding battle over the mandate that we've been seeing for the past six years?

I would defer to what the lawyers [at the Becket Fund for Religious Freedom] have said, because it's their case and they have been completely on top of this. They're excellent lawyers. I'm a member of the board of the Becket Fund and know them well.

I think our lawyers have done a fantastic job in these cases, including Little Sisters of the Poor case, so I would really defer to their judgment.

I will say this though: I believe an authentic, faithful, honest interpretation of these guidelines by the government officials who have responsibility for that litigation would cause them to basically concede to the Little Sisters; to acknowledge that to the extent that the regulations purport to impose upon religious organizations a requirement that they provide, or in any way implicate themselves in providing, contraceptives or abortifacient drugs in violation of religious teaching, that the government has no right to do that.

The regulations cannot be enforced against those religious entities. But again, the proof will be in the pudding.

We'll see whether the public officials to whom this guidance is addressed apply the guidance in that way.

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There's another point that's worth making, just to step back from all this for a moment.

Even as late as the middle 1960s there were still jurisdictions – including Massachusetts and Connecticut – that prohibited the sale, distribution, and even use of contraceptives. Those were long-standing laws put on the books by Protestant majorities in the 19th century to protect public morality and the institution of marriage.

The reason that efforts to repeal those laws consistently failed in the legislatures of Connecticut in Massachusetts and some other states – although they succeeded in some states – is that some of the legislatures felt that the widespread availability of contraception would weaken public morality and open the floodgates to promiscuity, adultery, divorce, family abandonment, and all the things that come in the wake of a collapse of sexual morality.

The Supreme Court struck down the anti-contraception laws in 1965 in the case of Griswold v. Connecticut, and in 1972 in the case of Eisenstadt v. Baird and they did that at the behest of liberals who insisted that contraception was a deeply private matter in which the public had no right to intrude.

The Supreme Court found an unwritten "right to privacy," allegedly lurking in "penumbras formed by emanations" of various constitutional guarantees. Included in this putative right, the justices in the majority insisted, was a right to use contraception. Why? Because contraception, they maintained, was a "private" matter. People had different moral opinions on the subject and the State should not allow anyone to impose his or her opinion on others.  One cannot help but notice how liberals have changed their tune. They evidently no longer regard contraception as a private matter. They now treat it as a public good - embracing one side's moral opinion and permitting it to be imposed, in certain ways, on those who disagree. Specifically, they want to use the coercive power of government to compel people who for religious or moral reasons oppose contraception (and abortion) to pay for other people's contraceptives and abortion-inducing drugs.

So, one cannot help but perceive a rather huge dollop of hypocrisy in the way the contraception issue has been treated by the progressive movement to from the middle 1960s to the middle 2010s.

If it's private, leave it private. If it's not private, then they had no business asking the Supreme Court to strike down laws prohibiting it in the name of a putative right to "privacy."

They really should make up their minds whether it's private or not private.

Another change is that the mandate now protects those with non-sectarian conscience objections to the mandate. Can you speak to the importance of this expansion for those who object to these issues for non-religious reasons?

Many people do not derive their moral convictions from a religion, and many religious people believe that there are moral truths that can be known by the disciplined application of reason, even apart from what might, in addition, be known by revelation or the teachings of a church or other religious body.

In other words, many people believe in what has traditionally been called "natural law."

It appears that in this guidance, it's acknowledged that non-religiously based, or not necessarily religiously based, moral reflection deserves conscience protection in the same way that religiously based moral convictions deserve conscience protection.

Back to the Department of Justice guidance: Can you comment on the guidance on religious freedom objections generally? What other cases or situations can this apply to, beyond the contraception mandate? What are some of the other kinds of cases that the government's guidance might impact?

In those states that have moved to assisted suicide, I think the guidance system provides some promise of protecting religiously based health care-providing institutions like Catholic hospitals or other religiously affiliated medical institutions from being forced to participate in assisted suicide or, for that matter, in abortion.

This applies to individuals as well as institutions: doctors in state facilities, for example, who cannot in conscience participate in assisted suicide or abortion..

It could be that some states or municipalities move in the direction of banning male infant circumcision – there's a movement, called the intactivist movement, that is strongly pushing for bans on male infant circumcision.  If such laws are adopted, I think that this guidance would strengthen the hands of Jewish organizations and Muslim organizations that will seek to preserve the right to have their male infant children circumcised on a religious basis.

We've seen this in Europe: some jurisdictions in Europe have banned male infant circumcision, and their movement is alive here in the United States. One can easily imagine certain jurisdictions, certain municipalities, maybe certain states, banning circumcision, so it could become important in that area.

These protections will protect not only Catholics and other Christians, but members of non-Christian faiths as well.

What else should our readers know about these two religious freedom updates?

Probably the most important thing to remind people is that the guidance or principles are designed to guide public officials, but they don't dictate results. The same is true of the Religious Freedom Restoration Act, by the way. It simply gives the religious claimant a day in court and requires that the government prove that its imposition on a religious claimant is supported by a compelling state interest and represents the least restrictive or least intrusive means of pursuing that interest. It doesn't dictate the result.

So while I welcome, and I think all friends of religious liberty and of conscience should welcome, this guidance, we need to hold off cheering until we see how the guidance is actually interpreted and applied by public officials. Until we see the guidance actually applied to concrete disputes we won't know whether to cheer.

There's a human element to this. Rules don't apply or interpret themselves. Human beings interpret and apply rules. So we need to see the human beings in the bureaucracy interpreting and applying the rules, and then we'll know whether there's anything worth cheering about.

But I do believe in the principles that have been endorsed in the guidance documents, and I think that if they are faithfully and authentically interpreted, it will mean a very desirable set of protections for religious freedom – protections that are now many years overdue due to the assaults on religious freedom during the Obama administration.