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.
The new Department of Justice guidelines outline 20 different principles in which religious liberty might be affected, such as in health care as seen with the 2014 Hobby Lobby case, in hiring practices, the expression of religion on public property, and in workplace accommodations, to name just a few.
The document also outlines, or seeks to clarify, points made by the federal Religious Freedom Restoration Act, which was originally signed into law by President Bill Clinton in 1993.
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[sic] and most generous. President Trump promised that this administration would ‘lead by example on religious liberty,’ and he is delivering on that promise.
Despite the new memorandum’s claimed purpose, religious freedom and civil rights advocates are not as eager to celebrate as the Trump administration.
In a recent post, ACLU senior staff attorney Heather Weaver writes, “Purporting to interpret religious-liberty protections in federal law, the guidance — a 25-page memo sent to all executive branch departments — doubles down on a distorted understanding of religious freedom. Not only does it allow discrimination in the name of religion, it also treats the separation of church and state as a mere afterthought.”
The ACLU and other opponents note that these new guidelines place an emphasis on, or skew legal interpretations of, the protection of religious belief at all costs. As Weaver wrote, the document “treats the separation of church and state as a mere afterthought.”
For example, principle number 7 states: “Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.”
According to the document’s explanation, the federal government may not use neutral laws to discriminate against religious entities, persons, or practices. This, as noted in the document, includes the IRS’ enforcement of the Johnson Amendment. In other words, the IRS cannot punish a religious organization for lobbying or intervening in political campaigns, because that result in the discriminatory use of neutral laws.
In an Oct. 6 press release, Rev. Barry W. Lynn, executive director of Americans United (AU) voiced his objections to the Attorney General’s memorandum. He also focused on the discriminatory potential of the new guidelines, but from a different perspective.
“This is as serious as it gets,” Lynn wrote. “As a result of the Trump administration guidance, millions of Americans could be relegated to second-class citizenship.”
He continued, “Religious freedom doesn’t give anyone the right to use religion as an excuse to harm others. But today the Trump administration is giving the Religious Right exactly what it wants.”
In their articles, both Lynn and Weaver outline the many concerns that they have with the new guidelines and how they could lead to civil rights violations, including the very broad interpretation of the federal RFRA.
Lynn called the memorandum a “roadmap[sic] for how to discriminate against most anyone, including women, LGBTQ people and religious minorities.”
Weaver agreed, saying: “These guidelines aren’t about protecting religious liberty. Our laws already do that in spades. Rather, they are an obvious effort by the Justice Department and the administration to send a detestable message: Discrimination is welcome here.”
Interestingly, the administration doesn’t seem to be hiding its intent. Weaver’s observations, as well as that of Lynn, are only supported by Sessions’ own comments concerning the memorandum.
Sessions wrote: “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.’”
While the actual memorandum states its purpose as being the protection of religious liberty, it would appear that, according to Sessions, the purpose is actually to protect “people of faith.”
Those are two different goals, and Sessions statement leaves one important, unanswered question for the Trump administration: how does it define who these “people of faith” are that need protecting?
Furthermore, it is important to note that both sides of the debate are concerned about discrimination. But, to coin a phrase, the “devil is in the detail,” or in this case it’s in the “who” needing protection.
Both AU and the ACLU have pledged to fight the new guidelines and any discriminatory cases that should rise as a result. Lynn said, “Americans United will use all available channels to oppose these efforts to use religion as an excuse to discriminate and harm others.”
As a side note, SCOTUS will be hearing the Masterpiece Cakeshop case in the coming months, and these new guidelines may have an affect on its outcome.