A Baptist attorney specializing in church-state issues says Attorney General Jeff Sessions’ 25-page memorandum outlining the Justice Department’s understanding of the scope of religious liberty protections reflects “a decided tilt” toward concerns about the free exercise of religion while giving short shrift to the First Amendment’s establishment clause.
Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty, said the Oct. 6 memo in large part restates settled law, but in at least a couple of areas the attorney general’s guidance “will exacerbate controversy” regarding religious liberty disputes.
“The guidance treats complicated legal issues … in an overly simplistic way,” Hollman said in a statement.
The memorandum, commissioned by President Trump in an executive order May 4, identifies 20 “high-level” principles to be used by administrative agencies and executive departments “to ensure the religious freedoms of Americans are lawfully protected,” according to a Department of Justice press release.
The list includes the proposition that the free exercise of religion includes the right to act or abstain from action in accordance with one’s belief, regardless if it is central to or required by a particular religious faith.
Religious freedom extends not only to persons, the memo says, but also to people who exercise their religion through churches, denominations, religious organizations and even businesses.
Individuals and organizations do not give up their religious liberty protections if they contract with the government to provide social services using taxpayer funds.
While the government can deny the use of public funds for explicitly religious activities such as worship or proselytization, it cannot deny parochial schools the right to participate in a voucher program, so long as the aid reaches the school through independent decisions of the parents.
The memo says the government cannot officially favor or disfavor particular religious groups, nor may it interfere in the autonomy of a religious organization regarding internal disputes about “doctrine, discipline or qualifications for ministry or membership.”
It says the Department of Health and Human Services cannot “second-guess the determination of a religious employer that providing contraceptive coverage to its employees would make the employer complicit in wrongdoing in violation of the organization’s religious precepts.”
Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with their mission without losing their ability to compete for federal financial assistance used to support government programs.
Barry Lynn, executive director of Americans United for Separation of Church and State, denounced the memo as “a roadmap for how to discriminate” against women, LGBTQ individuals and religious minorities.
“Anyone who cares about civil rights, fairness and equality has to pay attention right now,” said Lynn, an ordained minister in the United Church of Christ. “Treating one faith or one group of people as second-class citizens threatens the religious freedom that protects us all.”
AU says the attorney general’s insistence that religious organizations have a right to accept taxpayer money and discriminate against employees and the people they serve could give federal government workers the right to use religious beliefs as a reason to discriminate and deny services.
The new guidance “will seriously undermine protections against discrimination and negatively affect the LGBTQ community,” according to the educational and advocacy organization dedicated to advancing the constitutional principle of church-state separation as the only way to ensure freedom of religion for all.