How the Government is Prioritizing Religious Freedom Again
Officials say the Departments of Justice, Education and HHS are taking a “much different approach” to religious liberty than the prior administration did.
Trump Administration officials with the Department of Justice, the Department of Education, and the Department of Health and Human Services spoke Tuesday about the work their agencies have done in the past few years to ensure that the religious liberty of Americans is being adequately protected.
During the “Religious Liberty in the Trump Administration” panel hosted by the Heritage Foundation in Washington, D.C., Eric Dreiband, Assistant Attorney General for the Civil Rights Division at the Department of Justice, outlined the work that the Justice Department has done on the issue.
He referenced a memorandum issued by former Attorney General Jeff Sessions in October 2017 which outlined 20 key principles of religious freedom for federal agencies to abide by in their work. The memo remains binding and Dreiband discussed some of the principles DOJ has prioritized.
He discussed the principle of equal treatment which he explained as simply “the idea that religious individuals and groups and institutions should be treated equally and should not face legal disabilities because they are religious in nature.”
Dreiband cited the Trinity Lutheran v. Comer case as an example of this principle. In that case, the Supreme Court found 7-2 that Missouri had violated the Free Exercise Clause by denying a church’s participation in a state-run playground-improvement program. They wrote that the policy “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”
“The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution,” Chief Justice John Roberts wrote.
Dreiband emphasized that at the DOJ, “we have argued and will continue to argue that governmental institutions cannot exclude religious people and institutions because of their religious identity and character.”
He said that based on this principle the DOJ filed a friend of the court brief in Espinoza v. Montana Department of Revenue arguing “that the so-called Blaine Amendment in Montana violates the Constitution because in that case religious schools were deprived of tax-advantaged scholarships merely because they are religious schools.”
“We hope the Supreme Court will agree with us that that kind of program unlawfully discriminates against religious institutions in violation of the Free Exercise clause of the First Amendment,” he said. “We generally argued in that brief and in others that the principles of equal treatment include protecting religious liberty that is that individuals and organizations should not be pressured to abandon their religious faith in order to be eligible for some kind of government benefit.”
Dreiband said that another principle of religious liberty that the DOJ is attempting to prioritize is church autonomy.
“The Department of Justice takes the position that religious institutions are entitled to run their affairs as they deem appropriate,” he noted, referencing the DOJ statement of interest in Payne-Elliott v. Archdiocese of Indiana. That case involved a plaintiff who sued after he was dismissed by the archdiocese from his position as an Indianapolis Catholic high school teacher due to being in a same-sex union in violation of his employment agreement.
“We argue that the church autonomy doctrine and the freedom of association protections of the First Amendment protect the Catholic Church’s right to determine, number one, how it’s going to operate and, number two, how it’s going to associate with people in this case, how it will decide whether to associate or not with a particular Catholic high school,” Dreiband said.
He added that generally the DOJ is taking a “much different approach” to religious liberty than the prior administration did.
Regulatory Changes at DOE
Reed Rubinstein, Principal General Counsel for the Department of Education, said that his department has “taken a number of critical steps, technical steps, but critical steps to protect this first freedom” of religious liberty.
He referenced a regulatory review the DOE undertook “to determine how our Title IV regulations dealing with colleges and federal student aid might affect the rights of faith-based organizations under the free exercise clause and also those of students.”
This review resulted in some changes that included clarifying “that religious mission must be taken into account to address the possibility that an accreditation organization might, for example, require a Christian college to as part of awarding a master’s in social work degree require counseling with respect to same-sex marriage.”
He added that “accreditation organizations must acknowledge the pervasive impact that a religious mission can have on a campus while at the same time allowing them to ensure that there’s a comprehensive curriculum.” The revised regulations allow religious colleges and universities “to seek a review if they get an adverse action that is to say denial of accreditation by an organization because of a failure to respect religious mission.”
Rubinstein also said that the DOE is in the process of “modifying regulatory provisions that prohibit colleges from providing work study employment involving the construction, operation, or maintenance of a facility for sectarian instruction or worship.”
He said that the DOE will be “taking appropriate action” soon to address a Congressional ban on loans to historically black colleges and universities being used for “any educational program activity or service related to sectarian instruction or religious worship provided by a school or a department of divinity or to an institution in which a substantial portion of its function is subsumed in a religious mission.” This was something President Trump indicated in a speech in September.
Rubinstein concluded that the DOE’s changes will all “have a very significant effect, cumulative effect that will advance religious liberty on college campuses.”
‘The World Without the Little Sisters of the Poor’
Department of Health and Human Services Office of Civil Rights Director Roger Severino began his remarks by asking those gathered what would happen if the lyrics to John Lennon’s famous song “Imagine” were true and there really was a society with no religion.
“What would America be like?” he wondered, noting that it would be “something different than what the founders imagined America to be where they saw religion as a force for the public good that made society a virtuous society. In fact, a precondition for a country to be a republic at all was that we had a virtuous citizenry and religion was a fundamental part of that.”
Severino said that in Lennon’s world there would be no Little Sisters of the Poor, a religious order that “exists literally to be there so that the elderly poor do not die alone” and who are “driven by the religious impulse to be there when nobody else would be there for them.”
He then pointed out that under the Obama administration, “our HHS and our federal government saw fit to say ‘Little Sisters of the Poor, you can no longer exist as that sort of organization if you refuse to provide assistance to your fellow nuns to get contraceptives.’”
“Imagine the world without the Little Sisters of the Poor — and that’s what we were headed towards and it took a Supreme Court intervention to actually stop it,” he said, also referencing the Trump administration’s executive order on the issue.
“When you get to the question of Health and Human Services, there are many questions dealing with life and death and that’s when the religious impulse really comes to the fore,” Severino emphasized. “When we grapple with these questions of life and death according to the founders’ vision that must be done with freedom, free to reach your own conclusions without government coercion and certainly not government-funded discrimination.”
Enforcing Conscience Protections
On the issue of abortion, Severino pointed out that after the 1973 Roe v. Wade decision, there was “the bipartisan nationwide consensus that regardless of what you think about the legality of abortion you should not force others to participate in it, pay for it, refer it.”
“Congress passed these laws that ratified the will of the people, this consensus but for years these laws were not enforced,” he lamented. “When people sought relief in court, courts were saying ‘you don’t have a private right of action’ and many times these statutes are enforced exclusively by my office, the Office for Civil Rights at HHS.”
He noted that in the Obama administration his office received a little over one complaint 1.25 per year compared to the 343 they received in the last fiscal year. Severino said this is likely because his office has made it clear that they are “open for business” and will be enforcing these conscience laws.
“We recently issued several notices of violation,” he added referencing a recent notice of violation to the University of Vermont Medical Center for forcing a nurse to participate in an abortion despite her conscience-based objection.
He also highlighted a proposed rule from HHS identifying “25 conscience protection statutes affecting healthcare that Congress passed” in order to enforce them. He said that “there have been lawsuits around it which to my mind are baffling, right? These are laws that Congress passed and these are laws that should be enforced. This should not be controversial.”
Severino cautioned that for religious liberty “it’s not just a matter of enforcement, it’s a matter of institutionalizing these protections.” He said the Conscience and Religious Freedom Division within the Office for Civil Rights was founded to “make sure that these rights are treated at least as well as every other civil right.”
“We want to see this expand to the rest of the federal agencies to make sure we’re changing the culture of government so that not only the Little Sisters of the Poor will never face a similar situation that they face but that it would become unthinkable for the federal government to do such a thing,” he emphasized.
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