As the Trump administration announced it would roll back the Affordable Care Act’s birth control mandates on Friday, the Department of Justice released two memos of its own. The first, titled “Federal Law Protections for Religious Liberty,” is a 25-page, 20-point document outlining guidance for how various federal agencies, including the Internal Revenue Service and the Department of Health and Human Services, should operate to preserve religious liberty as much as possible — even when it conflicts with anti-discrimination laws or other policies. The second, “Implementation of Memorandum on Federal Law Protections for Religious Liberty,” requires the DOJ to adhere to the first.
The guidelines include ensuring the “government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.” Those entities include for-profit corporations as well as nonprofits such as churches or synagogues. So for example, according to this guideline, the IRS is required to avoid enforcing the Johnson Amendment, which prohibits churches and other 501(c)(3) nonprofits from endorsing particular candidates, in circumstances where the amendment would not be enforced against secular nonprofits.
Quoting President Donald Trump’s speech on ending the Johnson Amendment earlier this year, Sessions said in a statement, "‘Faith is deeply embedded into the history of our country, the spirit of our founding and the soul of our nation … [this administration] will not allow people of faith to be targeted, bullied, or silenced anymore.’” Sessions added, "President Trump promised that this administration would ‘lead by example on religious liberty,’ and he is delivering on that promise.”
Trump has made religious liberty a key issue during both his campaign and time in office, courting the religious right by working to dial back the enforcement of the Johnson Amendment, and promising to roll back coverage of employer-based contraception under the Affordable Care Act, which he has now done. Now, his administration has gone a step further, interpreting religious freedom so broadly that, according to the memorandum, the government can require an individual or corporation to act against its religious principle only "if it is the least restrictive means of achieving a compelling governmental interest." These religious principles, in turn, are defined incredibly broadly, with any “sincerely-held” religious belief considered valid.
The memoranda come on the heels of additional efforts on the part of the Trump administration to court evangelical Christian voters through a focus on religious liberty. Two weeks ago, Attorney General Jeff Sessions announced that the Department of Justice would file a statement of interest in the case of a Christian preventing from proselytizing on campus at a Georgia college. And earlier this month, the Department of Justice filed an amicus brief in the ongoing Supreme Court case Masterpiece Cakeshop v. Civil Rights Commission, in favor of a Colorado bakeshop that refused to bake a cake for a same-sex couple.
Among the most striking parts of the memo is the determination that the federal government and its agencies may not second-guess "the reasonableness of a religious belief.” Therefore, according to the document, the Department of Health and Human Services could not question whether an employer’s religious beliefs would be actually violated if it had to provide contraceptive coverage to a worker, even if opposition to contraception is not formally part of the employer’s religious doctrine. Also notable is the document’s final point, which states that religious organizations must compete “on equal footing” for federal financial assistance, regardless of their hiring practices. This also means that religious schools can compete for and receive school vouchers. (It also reiterates the Supreme Court decision in Trinity Lutheran v. Comer earlier this year, which found that a Lutheran school’s playground should be allowed to receive public funds for renovation).
Central to the document is a narrow interpretation of the Religious Freedom Restoration Act (RFRA), the 1993 law that found new interest after the Supreme Court’s 2014 decision in Burwell vs. Hobby Lobby, allowing evangelical Christian-run craft supply chain Hobby Lobby to deny its employees coverage for contraception, including emergency contraception, otherwise known as Plan B. In that case, the Supreme Court interpreted the RFRA as broadly as possible, setting the precedent for religious freedom to function virtually unchecked. The document frequently name-checks the RFRA to support the legality of its claims.
Responses to Sessions’s memorandum have been mixed. The Ethics and Liberty Commission of the Southern Baptist Convention, the Convention’s policy arm, released a statement praising the decision, saying, “This legal memo reminds all federal agencies that people of faith do not have to leave their deeply held beliefs at the door when entering their job or public marketplace.”
But the Baptist Joint Committee for Religious Liberty, a historically Baptist organization devoted to advocacy for religious freedom issues, was more measured, saying in an emailed statement, “In a couple of areas, the guidance will exacerbate controversy. The guidance treats complicated legal issues, such as the definition of ‘substantial burden’ on religious exercise and the interplay between religious autonomy and government funding, in an overly simplistic way.”
The American Civil Liberties Union (ACLU) criticized the memorandum. “Anyone who values equality for all and the separation of church and state should be deeply disturbed by the message the guidelines send,” said Heather Weaver, senior staff attorney at ACLU’s Program on Freedom of Religion and Belief, on the ACLU’s website.
LGBTQ advocacy groups have expressed particularly concerned that the memorandum will be used to justify discrimination. JoDee Winterhof, senior vice president for policy and political affairs at the Human Rights Campaign, told the Hill, “Today’s despicable action from the Trump-Pence administration is unprecedented and allows for Kim Davis-style discrimination and beyond all throughout this country.”
These departmental guidelines are for internal use, and are not law. Like an executive order, these guidelines can easily be overturned. But because the memos interpret the RFRA so broadly, they, like the Hobby Lobby case, set a formidable precedent. And groups like the ACLU cannot preemptively challenge the memo, as World magazine’s Emily Belz points out. Rather, potential challengers have to wait for what they see as harm to occur before initiating a lawsuit.
For now, at least, the memoranda serve as a sign that this administration’s fight for the religious right isn’t over.