The first memo is directed to all executive departments and agencies and covers 20 critical areas. It begins by stating, “Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming.”
Churches and ministries should take note of the following 20 principles as summarized from the DOJ memo:
- The freedom of religion is a fundamental right of paramount importance, expressly protected by federal law.
- The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.
- The freedom of religion extends to persons and organizations.
- Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government.
- Government may not restrict acts or abstentions because of the beliefs they display.
- Government may not target religious individuals or entities for special disabilities based on their religion.
- Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.
- Government may not officially favor or disfavor particular religious groups.
- Government may not interfere with the autonomy of a religious organization.
- The Religious Freedom Restoration Act of 1993 prohibits the federal government from substantially burdening any aspect of religious observance or practice, unless imposition of that burden on a particular religious adherent satisfies strict scrutiny.
- RFRA’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit corporations.
- RFRA does not permit the federal government to second-guess the reasonableness of a religious belief.
- A governmental action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.
- The strict scrutiny standard applicable to RFRA is exceptionally demanding.
- RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties.
- Title VII of the Civil Rights Act of 1964, as amended, prohibits covered employers from discriminating against individuals on the basis of their religion.
- Title VII’s protection extends to discrimination on the basis of religious observance or practice as well as belief, unless the employer cannot reasonably accommodate such observance or practice without undue hardship on the business.
- The Clinton Guidelines on Religious Exercise and Religious Expression in the Federal Workplace provide useful examples for private employers of reasonable accommodations for religious observance and practice in the workplace.
- Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.
- As a general matter, the federal government may not condition receipt of a federal grant or contract on the effective relinquishment of a religious organization’s hiring exemptions or attributes of its religious character.
Additionally, Attorney General Sessions issued a second memo specifically to his department (DOJ) on how this guidance should be implemented.
Together, these companion memos provide important insights into how the Trump Administration will attempt to protect religious freedom consistent with federal law and the First Amendment.
[Source: ECFA. ECFA is not rendering legal, accounting, or other professional advice or service. Professional advice on specific issues should be sought from an accountant, lawyer, or other professional.]
