While the press is focused on the tweets and tantrums of the Trump administration, a quiet revolution is taking place that has received little attention. In his presidential campaigning, candidate Trump promised to reverse the Obama Administration’s policies which often dismissed religious liberty merely as a pretext for discrimination and exchanged the First Amendment’s free exercise of religion in society with a much more restricted right of freedom of worship confined to the four walls of the church.
On May 4, 2017, President Trump put a down payment on that promise and issued an executive order. The Order, which begins:
Section 1. Policy. It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans’ first freedom. Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.
The President’s executive order specifically mentioned IRS abuses, free speech and right of conscience violations, and instructed the Attorney General to “issue guidance interpreting religious liberty protections in Federal law.”
On September 6, 2017, AG Jeff Sessions carried through on that promise and released a 25-page memo instructing all the administrative agencies and departments of the federal government as to the government’s stance on religious freedom and directed them to protect religious liberty, including enforcing the Religious Freedom Restoration Act of 1993 (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The memo’s 20-point review of religious liberty is well worth reading as a primer on the religious issues facing this country and chronicles the reversal that the federal government under the Trump Administration has taken on many of these issues. In doing so, the memo alludes to many current events, including the recent Senate Judicial Confirmation hearings where Democratic senators grilled Amy Coney Barrett for her religious beliefs and insisted those beliefs might interfere with her ability to act impartially as a judge.
In summary of the issues addressed include:
Freedom of religion is a fundamental right for individuals and organizations and is to be exercised without coercion, allowing one to be part of a religion or not depending on their conscience.
Free exercise of religion protects the right to act and the right to abstain from acting as well as the right to worship.
Religious for profit businesses alongside religious organizations and not for profits are entitled to religious protection.
Religious persons and businesses cannot to be excluded from the public square for their sincerely held religious convictions.
The government cannot prefer a political group to a religious one in allowing one to provide information to the public.
The government cannot exclude a religious organization from government aid programs simply because it is religious.
The government cannot discriminate against religious individuals through “neutrally” applied laws which disfavor religious groups. (By way of example, the memo cites first, that the IRS cannot enforce the Johnson Amendment, which prohibits nonprofits and churches from endorsing a particular political candidate. Secondly, a city cannot deny an Islamic group from building their mosque if similarly situated secular or religious groups would be permitted.)
The government cannot interfere with the internal organization and administration of a religious group. Thus, by way of example, it cannot force a denomination to accept a female priest if that goes against the group’s doctrine.)
The government cannot second-guess a religious belief, such as a religious employer’s decision to not provide contraceptive coverage to its employees.
Religious employers are entitled to employ those with similar religious beliefs or have a written statement of faith and conduct as part of the job application.
All in all, the memo is a very helpful and welcomed change in which the heavy hand of government has been lifted, at least for the time, so that religious individuals and organizations are freer to exercise their faith not only in church but in the public marketplace.
cited by Mauck & Baker Attorneys at Law