A memo from the Department of Justice offering guidance to federal agencies on protecting religious liberty garnered only modest attention at the time of its release last month, but it could be one of the most important documents for America's first freedom to come from a presidential administration in recent years.
Contrary to its critics, the Trump administration's new guidance is not "a license to discriminate." In fact, the DOJ's instruction explicitly highlights Title VII of the Civil Rights Act of 1964, which prohibits discrimination by employers based on religion, sex, race, color and national origin.
Signed by Attorney General Jeff Sessions and dated Oct. 6, 2017, the DOJ’s 25-page "religious liberty" memo quotes James Madison, articulates 20 lofty principles concerning America’s first freedom and provides an index full of much-needed guidance on how federal actors can protect religious liberty in accordance with existing law.
“Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place,” the memo reads, “it also encompasses religious observance and practice. Therefore, 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."
This is one of many strong and commendable statements on the principles that should guide federal policy and practice concerning religious liberty. Several recent headlines, however, have cast the document as a menacing affront to basic civil liberties, harming “other individuals” and aiming to deprive women of “basic reproductive health care.”
The memo does none of that.
But beyond the bombastic backlash from activist groups, there is understandable concern among some with the memo’s specific language stating that the Religious Freedom Restoration Act or RFRA “might require an exemption or accommodation for religious organizations from antidiscrimination law even where Congress has not expressly exempted religious organizations.”
Yet, this is wise counsel. Passed by overwhelming bipartisan majorities in 1993, RFRA mandates a balancing of religious freedom and other important interests. Sometimes religious freedom wins, sometimes it doesn’t. So in narrow cases RFRA might give an accommodation to religious organizations where Congress failed to explicitly provide one. That was the whole point of RFRA. But after nearly 25 years, courts have rarely, if ever, found that RFRA overrides antidiscrimination laws.
In truth, the memo mainly articulates established principles of religious liberty and offers guidance based on court rulings and federal statutes.
"Maybe the most important thing here,” according to University of Virginia legal scholar Douglas Laycock, “is the commitment to review all new regulations for compliance with RFRA and religious liberty principles. Except for the contraception regulations, federal agencies have just ignored RFRA and waited to see if anyone sued them."
So-called “civil-liberties” groups decrying the memo might consider the document’s laudable focus on ensuring that federal agencies are compliant with laws aimed at protecting America’s chief civil liberty — religious freedom.
Admirably, this administration has taken proactive steps to protect this right. The memo quotes Madison, stating that the free exercise of religion “‘is in its nature an unalienable right’ because the duty owed to one’s Creator ‘is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.’” Much has changed in the centuries since the nation’s founding, but the preeminence of religious liberty and one’s unalienable duty to God must remain steadfast.