President Implements Pro-Life, Religious Liberty Order
October 06, 2017
Attorney General Jeff Sessions issued “guidance” to all administrative agencies and executive departments regarding religious liberty protections in federal law. The guidance is based on the following principles:
- 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 organizations;
- 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;
- Government may not target religious individuals or entities for special disabilities based on their religion;
- Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws;
- Government may not officially 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’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit corporations;
- RFRA does not permit the federal government to second-guess the reasonableness of a religious belief;
- A governmental 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;
- The strict scrutiny standard applicable to RFRA is exceptionally demanding;
- RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties;
- Title VII of the Civil Rights Act of 1964, as amended, prohibits covered employers from discriminating against individuals on the basis of their religion;
- 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 undue hardship on the business;
- The Clinton Guidelines on Religious Exercise and Religious Express in the Federal Workplace provide useful examples for private employers of reasonable accommodations for religious observance and practice in the workplace;
- Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts; and
- 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 attributions of its religious character.
Additionally, the guidance specifically includes:
- Administrative agencies should review their current policies and practices to ensure that they comply with all applicable federal laws and policies regarding accommodation for religious observance and practice in the federal workplace, and all agencies must observe such laws going forward;
- In formulating rules, regulations, and policies, administrative agencies should also proactively consider potential burdens on the exercise of religion and possible accommodations of those burdens;
- Much like administrative agencies engaged in rulemaking, agencies considering potential enforcement actions should consider whether such actions are consistent with federal protections for religious liberty; and
- Agencies also must not discriminate against religious organizations in their contracting or grant-making activities.
Following the release, Sessions said:
“Our freedom as citizens has always been inextricably linked with our religious freedom as a people. It has protected both the freedom to worship and the freedom not to believe. Every American has a 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 embedded 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.’
The constitutional protection of religious beliefs and the right to exercise those beliefs have served this country well, have made us one of the most tolerant countries in the world, and have also helped make us the freeist and most generous. President Trump promised that this administration would ‘lead by example on religious liberty,’ and he is delivering on that promise.”
Sessions further reinforced his guidance with a directive aimed at his own department, which frequently is most heavily involved in domestic religious liberty issues.