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ERLC Priorities for DOJ Religious Liberty Guidance (Executive Order 13798)

Religious Liberty Guidance

Executive Order 13798, “Promoting Free Speech And Religious Liberty,” directs the U.S. Department of Justice to “issue guidance interpreting religious liberty protections in Federal law” in order to “guide all agencies in complying with relevant Federal law.” The following letter lays out the ERLC’s religious liberty priorities in two ways. First, we highlight several specific agency policy issues where relief for religious liberty concerns is needed. Second, we offer several process-oriented suggestions for avoiding future conflicts with agency action and religious liberty.

Issue explicit guidance from the Attorney General to the Treasury Department to prohibit revocation or denial of tax exempt status to an organization based on its religious beliefs. In response to a question from Justice Alito during the oral argument of Obergefell v. Hodges, the Solicitor General responded that the tax-exempt status of religious institutions "would be an issue” if the Court found a federal constitutional right to same-sex marriage. ERLC recommends that DOJ provide guidance to resolve this ambiguity. Specifically, ERLC recommends DOJ advise the Treasury and the IRS through an Office of Legal Counsel (OLC) memorandum that the tax-exempt status, tax deductibility of donations, and tax benefits available to any person, house of worship, or other religious organization must remain intact where such person or organization believes, speaks, acts, or declines to act on a belief that marriage is between one man and one woman, that an individual’s sex is objectively determined by biology, or that human life deserves protection at all stages of life.

Encourage the Department of Health & Human Services and the White House Office of Management and Budget to issue the draft interim final rule (with the text as “leaked” on May 31, 2017) providing relief to the contraceptive mandate. Advise the Secretary of HHS to guarantee that any individual or company purchasing health insurance (whether through private markets, or exchanges facilitated by federal or state governments) has the option to purchase coverage that does not subsidize elective abortion. Further, religious organizations that provide federally funded child social services (including adoption, foster
care, or the promotion of those services) should not face adverse action or other discrimination by the federal government because of their religious or moral beliefs about marriage, human sexuality, or that human life deserves protection at all stages of life, from fertilization and to natural death.

Ensure a Religious Freedom Restoration Act (RFRA) analysis is articulated in future notices of proposed rulemaking (NPRMs). NPRMs often make reference to RFRA as a remedy for the burdening of religious conscience. For instance, HHS’s NRPM (“Nondiscrimination in Health Programs and Activities,” 81 Fed. Reg. 31375, 31379,—May 18, 2016) includes a discussion of RFRA. This discussion suggests that the law provides a remedy for people of faith to make their claim in court that “[A]pplication of RFRA is the proper means to evaluate any religious concerns about the application of Section 1557 requirements.” According to this rule, HHS refuses to consider whether the rule burdens religious liberty in the least restrictive manner, arguing that this is a matter for the courts to decide. To the contrary, the ERLC believes that federal agencies should, in the first instance, and at a bare minimum, conduct a formal RFRA analysis to determine whether the agency action complies with federal law.

Advise the White House to rescind President Obama’s Executive Order 13672. This order presently requires all federal contractors and subcontractors to positively affirm same sex marriage and a definition of sex tied to gender identity, or else forfeit eligibility for federal contracts. Religiously affiliated federal contractors must be permitted to hire and retain employees based on religious belief or moral conviction.

Reaffirm the First Amendment to the U.S. Constitution and the Religious Freedom Restoration Act (RFRA) as the standard by which conflicts between the federal government and the religious belief or action of citizens are adjudicated. Additionally, some federally recognized accreditors in a variety of sectors, including higher education, adoption, and others, have begun discriminating against religious organizations based on the religious belief and moral convictions of those organizations. DOJ should direct all agencies to ignore accrediting bodies that revoke or deny accreditation to such religious organizations. In the context of federal contracts and grants, DOJ should advise all agencies including the Department of Labor to provide protections and exemptions for the religious belief of contractors and grantees consistent with the Civil Rights Act of 1964 and the American Disabilities Act of 1990.

Require federal agencies to assess and articulate the impact of agency action on religious communities. As a part of the RFRA analysis discussed above, federal agencies should conduct an impact assessment, coordinated by the relevant agency’s Office of Faith-Based and Neighborhood Partnerships, of the proposed rule or agency action on people of faith within the regulated community. This assessment should specifically describe the religious community’s sense of complicity with what they believe to be a moral wrong.

Recommend each agency assess and report on the burden of current regulation on religious liberty. We recommend each agency conduct an analysis of whether current regulations burden religious liberty. This assessment should include analysis and reporting of complaints received by the agency, lawsuits filed or threatened relating to agency action, and comments submitted during the notice and comment period for existing rules.

Coordinate and deliver USG-wide training for each agency on religious liberty protections. This training should be focused on helping agency actors understand how people of faith think and approach daily life. Government authorities in a diverse country must have a basic working knowledge of what people of faith believe to be morally right and morally wrong. This training could equip agencies to anticipate conflicts with religious liberty and fashion effective religious liberty exemptions as a part of agency action.

Issue final judgments in the HHS Mandate lawsuits. The plaintiffs and the millions of Americans they represent need the Department of Justice to enunciate a final judgement granting sufficient exemptions for religious belief and moral conviction. Without which, such a mandate would be a coercive overreach of U.S. government powers.

Provide clarity to the Department of Defense on the impact of Instruction 1300.28 on military readiness and individual service members’ religious liberty. Effective October 2016, the military is implementing its guidance on “In-service Transition for Transgender Service Members.” Chaplains and other service members who recognize an person's sex is objectively determined by biology or affirm a biblical understanding of human sexuality are gravely concerned about the requirements of this policy and the burdens it places on consciences of servicemen and women. ERLC recommends that DOJ issue guidance to the DOD that provides for the discontinuation of this multi-billion dollar policy.

Formally reject the majority view and recommendations of U.S. Civil Rights Commission 2016 Report, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties. In this report, Chairman Martin Castro wraps religious liberty and religious freedom in scare quotes, likens them to Jim Crow laws, and labels them “code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.”

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