Monday, October 9, 2017

New DOJ Guidance Includes 20 Key Principles on Protecting Religious Liberty

In a set of memos by Attorney General Jeff Sessions, the U.S. Department of Justice (DOJ) has just issued extensive guidance on protecting religious liberty.

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:

  1. The freedom of religion is a fundamental right of paramount importance, expressly protected by federal law.
  2. The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.
  3. The freedom of religion extends to persons and organizations.
  4. Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government.
  5. Government may not restrict acts or abstentions because of the beliefs they display.
  6. Government may not target religious individuals or entities for special disabilities based on their religion.
  7. Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.
  8. Government may not officially favor or disfavor particular religious groups.
  9. Government may not interfere with the autonomy of a religious organization.
  10. 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.
  11. RFRA’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit corporations.
  12. RFRA does not permit the federal government to second-guess the reasonableness of a religious belief.
  13. 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.
  14. The strict scrutiny standard applicable to RFRA is exceptionally demanding.
  15. RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties.
  16. Title VII of the Civil Rights Act of 1964, as amended, prohibits covered employers from discriminating against individuals on the basis of their religion.
  17. 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.
  18. 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.
  19. Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.
  20. 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.]

District Court Calls Minister's Housing Allowance Unconstitutional

A ruling has just been issued by a Wisconsin federal district court calling the minister’s housing allowance unconstitutional.

This decision does not come as a surprise as the same judge issued a similar ruling back in 2013 before the case was dismissed by a higher appeals court on the technical grounds of standing. Judge Barbara Crabb writes in her latest ruling, “I adhere to my earlier conclusion that [the minister’s housing exclusion] violates the establishment clause because it does not have a secular purpose or effect and because a reasonable observer would view the statute as an endorsement of religion.”

Fast forward several years, and the parties and issues are very similar except that the plaintiff bringing the case (Freedom From Religion Foundation) has tried adjusting its approach to overcome the standing hurdle.

What is the immediate impact for ministers and churches?

At this point, the court has issued its ruling simply declaring the housing allowance is unconstitutional but without any damages or other remedies awarded, so there is no immediate effect on ministers who are eligible for the housing exclusion under current law.

Additionally, it is likely the district court’s decision will be appealed, and a higher court will have to determine whether FFRF has standing on the facts of this case, and if there is standing, whether it agrees with the lower court that the housing allowance is unconstitutional.

[Source: Freedom From Religion Foundation v. Mnuchin, No. 16-CV-215 (W.D. Wis. Oct. 6, 2017)]