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.”

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24