by Ken Burrows
Note: Be sure to read information on the Do No Harm Act at the end of this article, a bill that would prevent many of the negative consequences of Jeff Sessions’ guidance on religious liberty.\
On October 6, Attorney General Jeff Sessions, acting on instruction from President Donald Trump, issued guidance on interpreting religious liberty protections in federal law by releasing a 25-page memorandum and appendix on the matter. This document, directed to “all administrative agencies and executive departments,” is, as expected, uniformly deferential to religious interests. It is also disturbingly mute on the adverse impacts its stipulations will have on untold numbers of citizens. This sort of guidance would ideally balance the protection of religious belief and practice with safeguards against using religion to harm others. In Sessions’ hands, it does not do so. He gives virtually unrestrained license to religious prerogatives while ignoring the harms.
The guidance memorandum enumerates 20 separate “Principles of Religious Liberty.” The first of these is a proposition no reasonable person with knowledge of our history and founding principles would dispute. It asserts the right of all Americans to express their religious beliefs without being forced to join a church or satisfy a religious test to hold office. But this kind of reasonableness fades as Sessions moves on to principles 2 and 3. Here he states that free exercise of religion includes the right to act or abstain from action according to one’s religious beliefs [italics in original]. He lists no exceptions that he might consider valid. Further, he states “exercise of religion” is to be defined broadly “to encompass all aspects of observance and practice, whether or not central to, or required by, a particular religion.” So “religions” that are not really religions fall under his religious liberty protection umbrella. Finally, he states that religious free exercise protects not just persons but also “organizations, schools, private associations, and even businesses.” Which means nonreligious entities also somehow enjoy religious liberty protection.
Extreme religious liberty
So in the opening content of his guidance memorandum, Sessions has already tilted toward the type of “extreme religious liberty” that even our Founders recognized as dangerous because such extremism has the potential to harm others. James Madison and Thomas Jefferson, as part of their understanding of religious liberty, frequently cautioned that such harms need to be avoided. (More on this later.) In this they agreed with one of their mentors on governance, Reverend John Witherspoon, the only active clergyman to sign the Declaration of Independence. Witherspoon wrote that the notion of liberty includes security of individuals, and exercising one’s rights must be done in a way that citizens “may not be injurious to one another [so] that the public good may be promoted.” Sessions fails to include the necessary balance Witherspoon and his colleagues saw as necessary.
The closest Sessions comes to balance is in principles 7 and 8 of his memorandum, where he states that “government generally may subject religious persons and organizations to neutral, generally applicable laws,” and that the Free Exercise and Establishment Clauses “prohibit government from officially preferring one religious group to another.” But here again his moderation is short-lived. He follows this up with six separate principles citing and defending the Religious Freedom Restoration Act (RFRA), a 1993 law that theoretically sought to minimize government intrusion into religious practice.
Sessions does not mention that critics have called RFRA an over-reach that, while well intended, ended up creating a religious-rights “super-statute” that unconstitutionally trumps virtually all other law, elevating religious beliefs above citizen rights. It was RFRA that formed the basis for allowing the for-profit corporation Hobby Lobby an exemption from a neutral, generally applicable law regarding providing contraceptive health coverage for the company’s employees. Since then numerous RFRA-like measures have been introduced and sometimes passed in various states to permit skirting existing laws, eroding equality, and diminishing individual citizens’ rights. (The Do No Harm Act would rein in these abuses; see note at the end of this article.) So while Sessions stated that religious organizations are subject to generally applicable laws, this rings hollow in light of his enthusiasm for RFRA, which too readily allows religious exemptions to such laws. Exemptions that, in the Hobby Lobby case, extend even to a nonreligious business. Sessions here underscores the unbalanced extreme he’s chosen to pursue.
Religion, by any definition, reigns
Moving on to principle 12 in Sessions’ memorandum, he reminds readers that RFRA also does not permit the government to evaluate or second-guess the reasonableness of a religious belief. (Keep in mind here the elasticity Sessions allows in defining “religion” and “religious.” He has said no identifiable religion, per se, has to be involved. A self-claimed “religious belief” will suffice, and its validity and sincerity must be accepted as a given.) He singles out beliefs about contraception as an example, saying a religious employer’s insistence that birth control is immoral must be taken at face value, and this justifies the employer’s refusal to include contraception coverage for employees even if legally required otherwise.
(Side note: For Sessions to choose contraceptive health coverage as an example is not surprising since the issues of contraception and same-sex marriage are readily known to be key triggers for this religious liberty guidance being compiled and issued in the first place. Accordingly, in the appendix to his memorandum, as Sessions discusses what standards government would have to meet to allow its intervening to prevent religion-based discrimination against others, he specifically singles out sexual-orientation discrimination as “not sufficiently compelling” as an infringement that warrants remedy. He’s not hiding the line he’s intent on toeing to satisfy religious-right factions that militate for this brand of religious extremism in today’s hot-button issues.)
Sessions next delves into a pivotal area where religious liberty harms can come into play—Title VII of the Civil Rights Act of 1964, which bars employers from discriminating on the basis of an applicant’s religion when hiring. He takes care, in principles 16 and 17, to say employers (primarily nonreligious ones in this context) must avoid such discrimination and must, with rare exceptions, also accommodate religious observance and practices of employees. “But,” he immediately states, “the protection does not apply in the same way to religious employers.” In principles 19 and 20 he states that religious employers are entitled to discriminate in hiring—choosing only those persons with compatible beliefs. In these situations, applicants lacking religion or lacking even “the right religion” get no discrimination protection.
Plus, Sessions goes on to say, religious entities cannot be denied various kinds of financial assistance (e.g., grants) because of such discriminatory hiring practices. He points out this permission to discriminate in hiring applies even if the employee will be working in a position that, by law, cannot involve the religious activity of the employer (such as providing publicly subsidized secular social services.)
The one-sided discriminations do not end there. Sessions writes: “Where educational institutions are owned, supported, controlled or managed [in whole or in substantial part] by a particular religion or by a particular religious corporation, association, or society, or direct their curriculum toward the propagation of a particular religion, such institutions may hire and employ individuals of a particular religion.” So, for example, the Jesuit-founded Regis University could, with Sessions’ blessing, hire only Catholic teachers. They could still receive public funding commonly granted to such institutions.
Sessions hands religiously affiliated educational institutions another permit to discriminate under Title IX of the Education Amendments of 1972. Title IX protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. Of this he writes: “Such institutions are exempt from Title IX’s prohibition on sex discrimination in those programs and activities where the prohibition would not be consistent with the religious tenets of the organization.” If they do discriminate based on sex, they would continue to be entitled to the federal assistance.
At another point in his guidance memorandum, Sessions even writes approvingly of religion-based exemptions to the Americans With Disabilities Act, without explaining how the ADA might impinge on religious liberty.
Business rights but not people rights
Does Sessions allow for any instance in which a person’s religious liberty claim would not automatically carry the day? His memorandum concedes one. He does state that an employer could decline hiring someone on the basis of religion if the applicant’s religious-practice demands would cause “undue hardship on the business” that could not be avoided. Similarly he states an employer “is not required to accommodate a religious observance or practice if it would pose an undue hardship on its business” or if accommodating all such employees “would result in significant overtime costs for the employer.” So Sessions seems willing to adopt some balance and flexibility to prevent a negative impact on business. But his memorandum never addresses the need for any similar balance and flexibility when deference to religious beliefs imposes a negative impact on people. Such are his priorities.
What are the real-world results of this sort of religious liberty guidance? Because it is so broad and unbalanced, it means individuals can be readily harmed in the name of religion, such as by being denied equal rights in employment, housing, governmental and other services, access to health care services, protection from nondiscrimination laws, and other situations in which someone “plays the religious liberty card” to justify adverse actions against others that would otherwise not be permitted. It means individuals can be made effectively subordinate to religion-based policies and their associated requirements and limitations when they do not subscribe to the tenets triggering them. This is so because Sessions’ guidance is silent on how to evaluate and handle such harms that will surely occur. He is either blind to them or, perhaps more likely, unconcerned about them. His zeal is directed at granting religion virtually unrestrained deference, whatever the consequences on others may be.
Long list of ignored harms
In the 17-page appendix following his 20 Principles of Religious Liberty, Sessions seeks to support his guidance by citing numerous court cases upholding preferential treatment given to religious interests. These range from the famous and familiar ones like Burwell v. Hobby Lobby (contraceptive coverage exemption), Wisconsin v. Yoder (Amish exemption from compulsory education law), Town of Greece v. Galloway (religious invocations allowed at governmental meetings), and the recent Trinity Lutheran Church v. Comer (church deemed eligible for government funds) to the more obscure ones like Church of the Lukumi Babalu Aye v. Hialeah, which found that a city could not enact an ordinance that was seen to target a specific faith by banning ritual animal slaughter, a unique practice of the faith. Sessions cites this decision no fewer than 10 times. Perhaps it is his way of emphasizing that citizens’ rights are not the only things that can be sacrificed in religion’s name.
What his roster of cases and various statutes shows is how broad and diverse deference to religion is and has been in America. What his roster does not show—because he does not mention it—is how many citizens are harmed in how many ways by this deference.
But harms unmistakably lurk in guidance such as Sessions has written, which gives a green light to extreme religious liberty. These harms include but also extend beyond obvious and celebrated cases like county clerks who deny same-sex marriage licenses, landlords who refuse rentals to non-Christians, and retailers who refuse to serve gays and lesbians in violation of nondiscrimination laws. The list of such possible harms is longer—and in some cases farther-reaching—than many realize. They bring back to mind Witherspoon’s insistence that rights properly exercised should promote the public good.
Marci Hamilton, a former Supreme Court justice clerk, religious issues litigator, and noted church-state scholar, documented several such harms in her 2014 book God vs. the Gavel: The Perils of Extreme Religious Liberty. Some examples:
- The Catholic Church has claimed, successfully, a religious freedom right to shield from discovery its files containing details of priest pedophilia.
- Jehovah’s Witnesses won a First Amendment claim that they had no duty to protect children from abuse as long as actions were within their religious freedom right to “decide matters of faith and doctrine.”
- Religious defendants in multiple states have successfully argued that applying “neutral principles of law” to charges of child abuse would require inquiry into defendants’ beliefs, and this is forbidden by their religious freedom.
- Some 30 states have exemptions for religious parents from medical neglect laws, even though children sometimes die due to such neglect.
- A Minnesota state supreme court rejected punitive damages when a Christian Scientist mother allowed her son to die of untreated diabetes, saying this would risk intruding upon the “forbidden field” of religious freedom.
- Judges have ruled that devout Sikh students could not be barred from carrying religiously ceremonial kirpan knives in schools, even though they are potentially dangerous and otherwise violate school safety rules.
- The well known 1972 Wisconsin v. Yoder case gave a religious exemption to compulsory education laws by permitting Amish parents to remove children from school after age 14, thus giving (some say unconstitutionally) selective government support to a faith lifestyle while also showing preference for a potentially deficient agrarian education in a technological era.
- The Religious Land Use and Institutionalized Persons Act (RLUIPA), a quasi-offspring of RFRA that bestows extreme liberty for religious landowners, effectively directs courts to treat land-use laws applied to religious entities as presumptively unconstitutional. This shifts the balance of power in residential neighborhoods to religious landowners at the expense of the residential quality of the neighborhood, making homeowners second-class citizens to their religious neighbors.
- An appeals court in California gave a landlord an exemption from a fair housing claim, saying free exercise of religion by the landlord was a substantially greater interest than eradicating discrimination against unmarried couples in housing.
Other likely harms cited by church-state watchdogs have included:
- A religious employer could ask for an exemption from employment discrimination law and fire a woman who remarried after divorce or who was pregnant and unmarried.
- A healthcare worker could seek approval to refuse furnishing certain physician-prescribed medications (such as contraceptives.)
- A mental health worker might claim state-required licensing violates her religious beliefs.
- The owner of a business serving the general public could claim a religious freedom right to refuse service to customers his faith disapproves of—not just gays and lesbians but also humanists, atheists, or even a member of a “contrary” faith.
- Healthcare workers could cite religious beliefs as reason to refuse to give patients certain procedures such as blood transfusions, in vitro fertilization, vaccinations, or psychiatric care.
There is nothing in Sessions’ guidance memorandum that would clearly render harms like these impermissible. On the contrary, his guidance will encourage more of them. These kinds of adverse consequences of his extreme religious liberty are something he simply does not discuss.
Almost anything goes
Finally, consider also just a short sampling of the portfolio of “religions” that Sessions’ broad and loose criteria would protect:
Christian Identity. A racist, anti-Semitic ideology seen in right-wing circles whose adherents believe that whites of European descent can be traced back to the “Lost Tribes of Israel” and which considers Jews to be the Satanic offspring of Eve and the Serpent, while non-whites are regarded as “mud peoples” created before Adam and Eve. Known for extreme anti-government sentiments and criminal behavior ranging from hate crimes to acts of terrorism.
Creativity Alliance (formerly linked to World Church of the Creator). Believes in the survival, expansion, and advancement of the white race exclusively. Believes the white race is responsible for all that is called progress on this earth; and that it is therefore logical and sensible to place supreme importance upon race and to reject all ideas which fail to do so.
Dominionism. The theocratic idea that God has called conservative Christians to exercise dominion over society by taking control of all political and cultural institutions and rule the citizenry by strict biblical dictates. Sometimes referred to as Christian Shariah, Christian Reconstructionism, and Theonomy.
Ku Klux Klan. Denials from several quarters insist the Klan is not “Christian” in a legitimate sense, despite formal names like Christian Knights of the Ku Klux Klan. However, some Klan groups claim to be Christian. According to Sessions, that alone legitimizes their “religious” character and earns them religious liberty protections.
Pastafarianism. Also known as the Church of the Flying Spaghetti Monster. Often considered to be a satiric non-church, but some adherents claim it as a religion, preaching faith in reason and science and against creationism. Again, per Sessions’ guidance, that claim must be honored for those who make it.
A myopic, anti-democratic focus
Has Sessions even paused to consider the full range of manipulation and malice his extreme religious liberty guidance might countenance? Has he no appreciation for the value of perspective? Certainly there is little quarrel with the idea that the individual’s religious beliefs and practices merit protection. This article is not by any means a call to abandon the safeguarding of such beliefs and practices. The question is how to manage that protection reasonably and fairly if and when it comes into conflict with other citizens’ rights and liberties, or when it brings other societal harm into play. A default position that religion wins that conflict in every instance is narrow-minded, unequal, and injurious. It’s quasi-theocratic. Harming citizens under the banner of unfettered religious liberty should matter to Sessions, but he’s given us no indication that it does.
At one point in his memorandum, Sessions states it is important “to incorporate religious adherents fully into society.” Fine, but don’t we all—religious adherents or otherwise—deserve to be fully incorporated? What about those who will instead be marginalized from society by his guidance, who will be denied full participation in its rights and benefits? Why does he not even mention them?
As the aforementioned author Marci Hamilton has noted: “Every right is situated within a larger constitutional structure. Republican representative democracy—not to mention much theology and moral philosophy—rests on the assumption that no individual has the right to harm others. … When [we] divorce rights from their structural context, [we] treat rights as a pure libertarian would: without reference to the rights holders’ obligations to society. Free exercise theories too often have focused on religious entities by themselves, as though their well-being or their liberty alone is an appropriate proxy for the general public good. This focus…is myopic and antidemocratic.”
In the Supreme Court’s first-ever free exercise case, Reynolds v. United States in 1878, the Court articulated clearly that the absolute freedom of conscience does not extend to absolute freedom of conduct. An excerpt from the decision reads: “Can a man excuse his practices … because of his religious belief? [To] permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself.” That principle held true through a century and more. None other than the late Justice Antonin Scalia said virtually the same thing in Employment Division v. Smith (1990). Sessions is either oblivious to this enduring principle, or bent on obliterating it.
Heedless of history
Our founding history should matter too. Sessions insists that the religious test clause of the Constitution “reflects the judgment of the Framers that a diversity of religious viewpoints in government would enhance the liberty of all Americans,” but he does not explain how his guidance mirrors this, since it would in fact diminish liberties for many Americans. At one point he claims, without offering any evidence, that “The considered judgment of the United States is that we are stronger through accommodation of religion than segregation or isolation of it.” But that is not in accord with Madison’s contention that “religion and government will both exist in greater purity the less they are mixed together.”
Sessions would have us believe his guidance principles are inspired in part by Madison, the chief draftsman of the Constitution. He (Sessions) introduces his memorandum by quoting from the famed Memorial and Remonstrance Against Religious Assessments, where Madison wrote that 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.”
Sessions should have taken time to review history more thoroughly. In that same Remonstrance Madison cautioned against the danger that “the majority may trespass on the rights of the minority” and said the religious assessments bill he was remonstrating against “violates equality by subjecting some to peculiar burdens [and] granting to others peculiar exemptions.” Peculiar exemptions are a running theme—if not the raison d’etre—in Sessions’ religious liberty principles.
Madison went on to say he opposed religious assessments because they would “degrade from the equal rank of citizens all those whose opinions in religion do not bend to those of the legislative authority.” Clearly, he was alert to the potential injury to equality when protection of religion is not balanced with protection for individual rights and minority opinions. He in fact stated this unequivocally by insisting that the free exercise of religion “is held by the same tenure with all our other rights.” His initial draft for what would become the First Amendment literally began with this intro: “The civil rights of none shall be abridged on account of religious belief…”
Following his presidency, Madison continued to advance this line of thought when he wrote in a Detached Memorandum, “The danger of silent accumulations and encroachments by ecclesiastical bodies have not sufficiently engaged the attention of the U.S.” Sessions today encourages such encroachments. But Madison’s most adamant and relevant observation in that Detached Memorandum is contained in his statement that it would be “profane” to invoke religion as “the means of abridging the natural and equal rights of all men.”
It is just such a profanity that courses through “Principles of Religious Liberty” as set out by Jeff Sessions.
What you can do
To push back against the harms found in Jeff Sessions’ religious liberty guidance, ask your representative to support H.R. 3222, introduced in the House of Representatives this summer by Joseph P. Kennedy III of Massachusetts. H.R. 3222, also called the Do No Harm Act, states in part:
It is the sense of Congress that—
(1) the Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption from generally applicable law that imposes the religious views, habits, or practices of one party upon another;
(2) the Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption from generally applicable law that imposes meaningful harm, including dignitary harm, on a third party; and
(3) the Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption that permits discrimination against other persons, including persons who do not belong to the religion or adhere to the beliefs of those to whom the exemption is given.