What President Trump’s New Religious Liberty Memo Does (and Doesn’t) Do
Justice Department’s new 20-point guidance falls between advocates’ hopes and opponents’ fears.
A 25-page report issued Friday by the Justice Department follows up on President Donald Trump’s repeated pledge to offer more legal protections for people—and organizations—of faith.
Attorney General Jeff Sessions echoed the sentiments of many American evangelicals and religious liberty advocates, writing:
Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. Except in the narrowest of circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance should be reasonably accommodated in all government activity, including employment, contracting and programming.
The memo offers federal guidance on 20 points of religious liberty—not establishing new laws or precedents, but highlighting where the Trump administration’s views lie regarding the proper balance of church and state.
While critics have characterized such protections as a “license” to discriminate, religious liberty experts state that the memo—while a major move—does not do everything that advocates have hoped or that opponents have feared.
Here are six points of clarification on the memo’s actual impact:
1. It does not change who can refuse to bake a cake.
“This does not break new ground on the wedding vendor cases,” said Douglas Laycock, professor of law and religious studies at the University of Virginia. “It does not take a clear position on the reach of the free exercise clause.”
Some of the most high-profile religious liberty fights in recent years, as Laycock mentioned, have been issues of accommodation for LGBT individuals, such as cases involving wedding photographers, caterers, and bakers. (Masterpiece Cakeshop, a Colorado bakery, is headed to the US Supreme Court over its refusal to bake a cake for a gay client, and the Justice Department previously filed an amicus brief in the baker’s favor.)
But rather than establishing new policies, this particular memo mostly references earlier rulings and federal statues, Laycock said.
2. It does make religious liberty a bigger consideration on the federal level.
The Religious Freedom Restoration Act (RFRA), a 25-year-old federal law designed to protect religious groups whose beliefs conflict with the government, has taken on new life under Trump. On the same day that the Justice Department’s religious liberty memo came out, his administration also rolled back Obamacare’s contraception mandate with new religious exemptions.
Laycock told CT:
Maybe the most important thing here 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. Most regulations don’t affect religious liberty, and maybe no amount of review will enable agencies to anticipate the unusual religious practice that might be burdened. But if they follow through on this—always a big if, and especially with this administration—it is a potentially big change.
In an executive order on religious liberty issued in May, Trump pledged that “the federal government will never ever penalize any person for their protected religious beliefs.”
SOURCE: KATE SHELLNUTT