Back in May, President Trump issued an Executive Order that gave a nod to religious freedom.1 While supporting religious freedom is commendable, it did little to effect practical change, at least at the time. In the months since, however, there have been several steps taken in the direction of shoring up religious freedom protections at the federal level. And several of these actions were taken in response to the May Executive Order. The federal government has been busy over the past several months, issuing memos and rules that impact religious liberty. We’ve reviewed the latest and summarized some of the high points in this post. Links to the full text of the sources are included.
Attorney General Releases Memo on Federal Law Protections for Religious Liberty
On October 6, 2017, Attorney General Jeff Sessions issued a memo on Federal Law Protections for Religious Liberty. The memo is an internal guide for federal administrative agencies and executive departments, which means it is intended to help them in enforcing federal law, rulemaking, and otherwise making decisions that impact people of faith and religious organizations. Twenty principles outline how the government is to achieve the balance between state interest and religious freedom, emphasizing that “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.”
Here are the principles that the Attorney General has stated should guide the federal government in carrying out its activities vis-à-vis religious liberty:
1. The freedom of religion is a fundamental right of paramount importance, expressly protected by federal law.
2. The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.
3. The freedom of religion extends to persons and organizations.
4. Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government.
5. Government may not restrict acts or abstentions because of the beliefs they display.
6. Government may not target religious individuals or entities for special disabilities based on their religion.
7. Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.
8. Government may not officially favor or disfavor particular religious groups.
9. Government may not interfere with the autonomy of a religious organization.
10. 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.
11. RFRA’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit corporations.
12. RFRA does not permit the federal government to second-guess the reasonableness of a religious belief.
13. 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.
14. The strict scrutiny standard applicable to RFRA is exceptionally demanding.
15. RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties.
16. Title VII of the Civil Rights Act of 1964, as amended, prohibits covered employers from discriminating against individuals on the basis of their religion.
17. 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.
18. The Clinton Guidelines on Religious 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.
19. Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.
20. 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.
The memo then contains a bit more guidance for federal agencies in light of these principles. The memo also contains an appendix explaining the constitutional underpinnings of and the main federal laws protecting religious liberty. The appendix describes the religion clauses of the First Amendment and the Religious Test Clause of the Constitution, the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), and other civil rights laws. Most notably, there is a section on protections for religious employers that emphasizes their right to employ those who share the organization’s religious beliefs. The full text of the memo can be found here.
HHS Issues Interim Final Rule on Religious Employer Exemptions from Contraceptive Mandate
In other recent news, the Trump administration has also issued rules related to the religious exemptions from the so-called contraceptive mandate in the Affordable Care Act. As a bit of background, under the Affordable Care Act, most health insurance programs are required to cover preventive services, which has been defined to include, among other things, contraceptives that may act as abortifacients. Many entities, including religious organizations and businesses owned by people of faith, have objected to complying with this mandate on religious and moral grounds. The issue of exemptions from the contraceptive mandate has been the subject of much litigation.
On October 6, 2017, the federal government announced new rules to provide exemptions from the contraceptive mandate. Three federal agencies—The Treasury Department, the Department of Health and Human Services, and the Department of Labor—all had a hand in this latest round. And these latest rules expand exemption coverage for entities and individuals with religious and moral objections to the contraceptive mandate. Technically, these are “interim” final rules, which means the rules are currently effective, but the agencies are taking public comment on them until the beginning of December and may make changes when the final-final rules are published.
The interim final rule can be found here.
Settlement Reached in Several HHS Contraceptive Mandate Challenges
While the rules are changing going forward, as you may recall, the issue has been in and out of court for years. Several religious organizations challenged the mandate as violating RFRA and the First Amendment. The Supreme Court sent the case back to see if the parties could work things out. And it turns out that many of them have.
In mid-October, Thomas Aquinas College issued a press release announcing that a settlement was reached in its case, as well as in several others. According to the release, under the terms of the settlement, the Government has conceded that the mandate imposes a substantial burden on the plaintiffs’ religious exercise and cannot be enforced under RFRA. Accordingly, the government is going to treat the plaintiffs as exempt from the mandate or any similar regulations and policy. In addition, the government has agreed to pay a portion of the plaintiffs’ legal fees, which given the extensive litigation, are likely to be substantial.
The settlement is important because it will protect these plaintiffs even if the rules change again under another administration. It also signals a willingness on the part of the current representatives of the Departments of Treasury, Labor, and Health & Human Services to recognize religious liberty issues and make concessions to protect those rights for people and organization with sincerely held religious beliefs.
1 Exec. Order No. 13798, 82 Fed. Reg. 21675 (May 4, 2017), https://www.whitehouse.gov/the-press-office/2017/05/04/presidential-executive-order-promoting-free-speech-and-religious-liberty.
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