Friday, October 6, 2017
Several months after the President's religious-freedom executive order (which, many observed, didn't appear to actually do very much), we see today some important and meaningful action from the Administration on the religious-freedom front. The wheels are now turning to expand the religious exemption from the HHS contraception-coverage mandate and the Attorney General has issued memoranda and guidance on how the Department of Justice will deal with religious-freedom matters that are quite striking in their full-throated endorsement of a robust understanding of our "first freedom." The Attorney General stated clearly, in keeping with longstanding American tradition, that religious freedom is a fundamental human right and not merely a policy preference.
In some respects, the documents simply summarize, re-state, and endorse existing and established Supreme Court doctrine. In some other respects, however, the guidance and memoranda take strong religious-freedom stands on questions that are contested. For example, the Department rejects the claim, advanced by some scholars and activists, that religious exemptions are unconstitutional if they "deprive a third party of a benefit." In addition, the fact that the guidance states that federal contracts and grants should not be conditioned on religious institutions giving up their religious-hiring rights or on abandoning aspects of their religious character will be welcome to the many religious agencies, schools, universities, hospitals, etc., that cooperate with government in pursuing the common good.
Third, the Department appears to understand the recent Trinity Lutheran decision broadly, as -- for example -- not permitting governments to exclude otherwise eligible K-12 schools from a voucher, scholarship, or tax-credit program. Presumably, the Administration will take this position in court when the issue arises, as it inevitably will.
A welcome set of developments.