by Travis Weber, J.D., LL.M.
July 31, 2018
Speaking at the Department of Justice yesterday, Attorney General Jeff Sessions announced the creation of a “Religious Liberty Task Force” to ensure the DOJ fully implements President Trump’s Religious Liberty Executive Order from May 4, 2017, and the follow-on DOJ religious liberty guidance issued on October 6, 2017.
The task force will ensure that the October 6 guidance fully affects all DOJ policy, such as what cases are taken, what arguments are made in court, and how DOJ personnel conduct themselves. Dialogue between DOJ and religious groups will remain ongoing, and DOJ employees will be trained in “their duties to accommodate people of faith.”
This is a welcome announcement, and further indicates the priority given to religious liberty by the Trump administration and his Department of Justice.
Sessions’ opening remarks were encouraging. He discussed the cases of religious objectors such as the Little Sisters of the Poor (subjected to a legal battle to not be coerced into providing contraception against their consciences), and baker Jack Phillips (who didn’t want to create a cake celebrating a same-sex wedding), mentioning Jack’s recent vindication in the Supreme Court’s Masterpiece Cakeshop decision and DOJ’s decision to file an amicus brief on his behalf. The Attorney General also mentioned he was filing a brief defending the ministerial housing allowance in an ongoing case, and discussed his department’s work to defend churches, synagogues, mosques, and other places of worship. Discussing the increasingly hostile social climate, Sessions criticized the anti-religious remarks certain senators made during recent judicial confirmation hearings, and tacitly but clearly noted the Southern Poverty Law Center’s toxic approach to public discourse:
We have gotten to the point where courts have held that morality cannot be a basis for law; where ministers are fearful to affirm, as they understand it, holy writ from the pulpit; and where one group can actively target religious groups by labeling them a “hate group” on the basis of their sincerely held religious beliefs. (emphasis mine)
Next, Archbishop Joseph Kurtz of Louisville argued eloquently for religious liberty, noting it is derived from and must be protected consistent with human dignity. Kurtz cited the example of faith-based adoption providers, who are buttressing already-strained government foster and adoption care systems, being targeted for living out their belief that children need a mother and a father. As an example of the contributions of such groups, he mentioned an organization named “The Call” which places up to half of all adopted children in Arkansas into families. Such religious organizations do their work quietly and resolutely day after day, and many are not even aware of the value they contribute to the common good. This is real public service, and these organizations must remain free to operate according to their beliefs.
Other panelists at the event, including the Heritage Foundation’s Emilie Kao, addressed the religious liberty threat of governmental authorities enforcing their own sexual orthodoxy on religious believers. Professor Michael McConnell of Stanford Law School (formerly a judge on the U.S. Court of Appeals for the 10th Circuit) discussed oft-used arguments that religious liberty can’t be tolerated when it causes “harm” to “third parties.” As Judge McConnell noted, however, there is always someone else who is affected by the protection of a legal claim to religious liberty—whether a government body, other group, or an individual. This is not a new concept. The fact that the law will always tangibly impact someone, combined with our historic reasons for religious liberty (the necessity of ensuring the government does not get in the way of humans being able to fulfil the responsibilities they owe to God), is the very reason the Founders put the First Amendment in the Constitution to begin with!
Introducing closing speaker Senator James Lankford, Deputy Attorney General Rod Rosenstein commented on the positive contribution of religious freedom to a society, and noted Senator Lankford’s defense of Judge Amy Barrett, who came under fire for her faith when being confirmed by the Senate to the 7th Circuit Court of Appeals.
Senator Lankford’s closing remarks powerfully explained the importance of all people being free to practice their beliefs. He mentioned the legal battle of Coach Kennedy as he sought to pray on the high school football field (something which shouldn’t be controversial), then forayed into international religious liberty issues such as China and Russia’s suppressions of religious freedom (citing a USCIRF report), as well as India’s anti-religious freedom laws. Lankford also addressed Turkey’s ongoing detention of Pastor Andrew Brunson, as well as the importance of Ambassador at Large for International Religious Freedom Sam Brownback’s work.
We have to set an example of religious freedom at home if we are going to argue for it overseas, Lankford rightly noted. He mentioned we must do better to protect the religious freedom of military chaplains, the need for legislation like the Conscience Protection Act and Child Welfare Provider Inclusion Act, and the importance of fixing the Johnson Amendment due to its chilling effect on religious speech. We must do religious freedom well (protecting the right for all faiths) at home to successfully promote it abroad. When it comes to religious freedom, we must show the world we walk the walk if we want to talk the talk.
At home or abroad, as Lankford noted, religious freedom includes a robust defense of all people being able to robustly practice their faith in the public square. When this vision of religious liberty is legally protected, the battle will be one of ideas instead of a battle in the courts (or subjugation to governmental suppression of ideas).
An open marketplace of religious ideas should be something all Americans can agree upon. We encourage DOJ in its effort to ensure this marketplace remains open.