The Trump administration today unveiled a series of theocratic interpretations of "religious liberty protections" that will unleash legal chaos and discrimination, charges the Freedom From Religion Foundation.
The executive orders and memos largely redefine religious liberty as the right to discriminate and deny others civil rights. Earlier today, President Trump signed two executive orders under the auspices of religious liberty permitting employers to deny women workers contraceptive coverage, in a move condemned by FFRF.
Attorney General Jeff Sessions today, at Trump's behest, has now issued a list of 20 far-reaching "Principles of Religious Liberty" that all federal agencies must implement. The goal appears to be to exempt Christians and other religionists from the rules and regulations of civil society, including rules that prevent discrimination.
Trump instructed the attorney general "to issue guidance interpreting religious liberty protections in federal law" when he issued his May 4 order on religious liberty. That executive order, in part claiming that churches no longer had to obey the Johnson Amendment barring 501(c)(3) entities from engaging in politicking, is under court challenge by the Freedom From Religion Foundation.
The unprincipled "principles" signal that the U.S. federal government will look the other way when discrimination occurs, so long as it is religiously motivated. The attorney general's memo seeks to redefine religious freedom, a strategy FFRF has warned about for years. It seeks to morph a right to freely exercise one's religion into an absolute right that can be used to harm and even discriminate against other Americans.
While some of the principles simply reiterate obvious and accepted constitutional provisions, many carve out new rights for religionists, such as:
• Saying private associations and even businesses have free exercise rights.
This would imply that secular businesses may discriminate based on religion, e.g., by refusing to hire or promote LGBTQ individuals or an unmarried mother who are considered transgressive of some religious dogma. (Principle 3)
• Repealing federal mandates pertaining to grants to faith-based organizations, saying
that "the federal government may not condition federal grants or contracts on the religious organization altering its religious character, beliefs, or activities." (Principles 4, 6)
This would appear, for example, to allow adoption or foster care agencies working with the government to discriminate against LGBTQ or interracial couples, so long as that discrimination stems from a religious belief. It would allow churches to get FEMA funding (a timely issue, with Trump tweeting support for litigation against FEMA by some Texas churches seeking hurricane relief). Principle 6 explicitly states that the government may not deny religious schools the right to participate in voucher programs, thereby seeking to bypass Congress' role in passing such legislation.
• A religious adherent can deprive another citizen ("a third party") of a benefit. (Principle 15)
Allowing a religionist to deny a benefit would be acceptable because the federal government must accommodate this religious belief. This clearly speaks to ongoing challenges involving cake bakers who refuse to bake cakes for same-sex weddings, plus any number of other kinds of discrimination.
At the root of the attorney general's memo is not the First Amendment, but the Religious Freedom Restoration Act, a broad and misguided act passed by Congress in the early 1990s. RFRA, not the First Amendment, was the basis of the Supreme Court's infamous Hobby Lobby decision enabling some secular corporations to deny women workers contraception based on corporate "religious belief."
The attorney general's memo repeatedly affirms RFRA: "Once a religious adherent has identified a substantial burden on his or her religious belief, the federal government can impose that burden on the adherent only if it is the least restrictive means of achieving a compelling governmental interest," Sessions states (Principle 14).
Citizens may believe whatever they like, but the right to act on those beliefs is by no means absolute, FFRF points out. "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices," the Supreme Court ruled 130 years ago. The court asked: "Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?"
Somewhere on the spectrum of religiously motivated action, civil law can step in. That line should be drawn where the rights of others begin. As Thomas Jefferson put it, "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."
But if religion mandates picking pockets and breaking legs, it comes under the purview of our secular law. And no belief, however fervent, should change that.
However, Sessions' new rules do seek to change this. Under Sessions, the Justice Department has filed an amicus brief supporting the baker who discriminated against an LGBTQ couple, reversing the Justice Department's position.
FFRF warned the Senate about confirming Sessions as attorney general, writing that he would tear down the wall of separation between state a church, which he called "a recent thing that is unhistorical and unconstitutional." Sessions was open about his belief that "free exercise also includes the freedom to act as one's religion demands, even if such actions might curtail the civil rights of others, or run contrary to the law."
Today's events are chilling.