Oct. 10, 2017
On May 4, President Trump signed an Executive Order declaring, “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom.” This order, barely more than a page long, gave few details about what such protections would entail.
However, in it, President Trump also instructed, “In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”
That promised guidance was released on Friday, October 6 by the Department of Justice, in the form of a 25-page memorandum for executive departments and agencies on the topic of “Federal Law Protections for Religious Liberty.”
In that memo, Attorney General Jeff Sessions lays out twenty “Principles of Religious Liberty.”
Family Research Council praised the memorandum in a press release here.
However, since most people will not read the 8-page memo or the 17-page appendix laying out its legal rationale, FRC here offers the text just of the introduction and the twenty principles.
Principles of Religious Liberty
Religious liberty is a foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law. As James Madison explained in his Memorial and Remonstrance Against Religious Assessments, the free exercise of religion “is in its nature an 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.” 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. Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming. The following twenty principles should guide administrative agencies and executive departments in carrying out this task. These principles should be understood and interpreted in light of the legal analysis set forth in the appendix to this memorandum.
- The freedom of religion is a fundamental right of paramount importance, expressly protected by federal law.
- The free exercise of religion include 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 [RFRA] of 1993 prohibits the federal government from substantially burdening any aspect of religious observance or practice, unless imposition of that burden on a particular 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 Free 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.
- Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.
- 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.