The Freedom From Religion Foundation is criticizing the U.S. Department of Justice’s newly issued guidance on religious liberty.
The Justice Department today released updated guidance replacing its 2017 memorandum on federal religious liberty protections and directing federal agencies to broadly accommodate religious exercise in employment, contracting, rulemaking, enforcement actions and grant programs. It also instructs agencies to proactively review regulations and policies for potential impacts on religious liberty and elevates religious interests throughout the federal administrative process. This is a sweeping effort to expand religious privilege throughout the federal government while further eroding the constitutional principle of church-state separation.
While the guidance purports to protect religious liberty, FFRF says it overwhelmingly emphasizes a favorable interpretation of the rights of religious believers and organizations while giving little attention to the constitutional rights of those who do not share those beliefs.
“This so-called religious liberty guidance is really a roadmap for privileging conservative Christianity at the expense of the constitutional rights of everyone else,” says FFRF Legal Director Patrick Elliott. “Rather than reminding federal agencies that the First Amendment protects both the free exercise of religion and the prohibition against government establishment of religion, the Justice Department has produced a one-sided manifesto that treats religious belief as a trump card over neutral laws, civil rights protections and government accountability.”
The updated memorandum repeatedly cites recent Supreme Court decisions to support expansive religious exemptions, endorses broad protections for religious organizations that discriminate in hiring and federal contracting, encourages agencies to accommodate religious objections whenever possible and instructs regulators to proactively consider religious liberty concerns throughout the rulemaking process. It also emphasizes parental rights over children’s religious upbringing and reinforces the doctrine of church autonomy.
“The Constitution protects religious liberty, not religious privilege,” Elliott remarks. “This guidance instructs agencies to keep stretching the law in one direction, toward broader religious exemptions, while giving short shrift to the constitutional rights of everyone affected by those exemptions.”
FFRF notes that the memorandum repeatedly privileges religious organizations in their dealings with the federal government. It directs agencies to preserve religious hiring exemptions even when organizations receive federal grants or contracts and states that religious entities generally cannot be required to choose between taxpayer funding and adhering to their religious beliefs. The guidance further embraces an expansive view of government religiosity, declaring that “religious activity in the public square and private religious expression by government employees cannot be proscribed via heckler’s veto” and citing John Adams’ oft-quoted statement that “our Constitution was made only for a moral and religious people” despite the Constitution itself containing no religious requirement for citizenship or government.
The guidance also directs agencies to consult with the White House Faith Office and the Department of Justice on religious liberty questions before finalizing regulations or enforcement actions.
“The Constitution protects religious freedom for everyone, including the millions of Americans who are nonreligious,” says FFRF Co-President Annie Laurie Gaylor. “Religious liberty means the government cannot favor one faith over another, or religion over nonreligion. This guidance instead elevates the demands of religious organizations above the public interest and the equal rights of others.”
FFRF warns that the guidance is likely to embolden efforts to seek religious exemptions from civil rights laws, workplace protections and other generally applicable legal requirements, allowing religious entities to claim preferential treatment while shifting burdens onto employees, beneficiaries and members of the public.
“The Department of Justice should be defending the First Amendment in its entirety, not transforming it into a tool for advancing Christian nationalist priorities,” Gaylor adds. “True religious freedom flourishes only when the government remains neutral on matters of religion.”
The Freedom From Religion Foundation is a U.S.-based nonprofit dedicated to defending the constitutional principle of separation between state and church and educating the public on matters relating to nontheism. With about 41,000 members, FFRF is the largest association of freethinkers (atheists, agnostics and humanists) in North America. For more information, visit ffrf.org.
