On October 6, 2017, Attorney General Jeff Sessions released a memorandum on religious liberty protections for all executive departments and agencies and guidance to Department of Justice staff on how to implement this memorandum. The memorandum outlines 20 principles of religious liberty to guide the federal government in accommodating religious observance and practice in federal employment, contracting, and programming. The principles themselves refer to the Constitution and federal laws, such as the Religious Freedom Restoration Act of 1993 (RFRA), in a general way, but much of the detailed legal analysis is found in the appendix, which accounts for most of the guidance.

The appendix focuses primarily on the First Amendment, RFRA, the Religious Land Use and Institutionalized Persons Act of 2000, and Title VII of the Civil Rights Act. The memorandum also includes a section on how agencies should incorporate these religious liberty principles, as employers and when engaged in rulemaking, enforcement, contracting, and grantmaking.

The Sessions memorandum was issued in response to President Trump’s May executive order on religious liberty. In that executive order, President Trump directed the Attorney General to issue guidance interpreting religious liberty protections “to guide all agencies in complying with relevant federal law.” (The same executive order directed the Secretaries of the Treasury, Labor, and Health and Human Services (HHS) to address religious objections to providing contraceptive coverage, which the agencies did through two new interim final rules on the same day that the Sessions memorandum was released.)

Principles Of Religious Liberty

Scope

The 20 principles are meant to be used by federal agencies and departments in accommodating religious freedom. They begin by affirming that the freedom of religion is a fundamental right that extends to persons and organizations. The memorandum states that this right extends to churches or other religious denominations, religious organizations, schools, private associations, and “even businesses.” Later on, the Attorney General notes that organizations, associations, and “at least some for-profit corporations” are protected under RFRA, citing recent Supreme Court precedent in Hobby Lobby v. Sebelius. Although the memorandum is vague on this issue—making no distinction between corporations that are closely held and those that are not—the administration’s October 5, 2017 rule on religious objections to providing contraceptive coverage suggests that the federal government may try to go beyond Hobby Lobby by applying religious freedom to all businesses, regardless of whether they are publicly or privately held.

Free Exercise Of Religion

The memorandum then discusses the free exercise of religion at length. As outlined in the memorandum, this includes the right to act or abstain from action in accordance with one’s religious beliefs. The right to abstain from action is a subject of ongoing debate that will be considered later this year by the Supreme Court when it hears Masterpiece Cakeshop v. Colorado Civil Rights Commission. In Masterpiece Cakeshop, the Supreme Court will consider whether the First Amendment protects a baker’s right to refuse to cook a wedding cake for a same-sex wedding when doing so would violate sincerely held religious beliefs. In a recent amicus brief—consistent with the principles outlined in the Sessions memorandum—the Department of Justice sided with the Masterpiece Cakeshop, arguing that the First Amendment cannot “compel someone to create expression for a particular person or entity and to participate, literally or figuratively, in a ceremony or other expressive event.” The Sessions memorandum also notes that religious individuals or organizations do not give up their freedom of religion by participating in the marketplace, being in the public square, or interacting with the government (such as receiving government grants or contracts).

The memorandum also states that the federal government is not to “second-guess” the reasonableness of a sincerely held religious belief. HHS, for instance, may not second-guess the determination of a religious employer that providing contraceptive coverage to its employees would violate its religious beliefs. The memorandum also states that an HHS rule that requires employers to cover contraceptive drugs in violation of their religious beliefs or face fines substantially burdens their religious practice.

The Religious Freedom Restoration Act

In the memorandum, the Attorney General discusses RFRA at length, noting that RFRA prohibits the federal government from substantially burdening religious observance or practice unless that imposition satisfies strict scrutiny, which is described as an “exceptionally demanding” standard. Per the memorandum, a government action substantially burdens the exercise of religion if the government 1) bans an aspect of religious observance or practice; 2) compels an act that is inconsistent with religious observance or practice; or 3) substantially pressures an entity to modify its religious observance or practice. For the government to show that it has opted for the least restrictive means, it must show that it cannot accommodate the religious entity through a viable alternative (which may include spending additional funds, modifying existing federal exemptions, or creating a new program). The memorandum notes that RFRA applies to “all actions” by federal agencies, including rulemaking, enforcement, grantmaking, and contracting.

The memorandum also discusses how the government should apply religious exemptions or accommodations when doing so may affect the rights and benefits of third parties. According to the memorandum, the fact that a religious exemption or accommodation would affect third parties (such as employees or those receiving services) appears to be of little consequence. Although “burdens imposed on third parties are relevant to RFRA analysis,” RFRA still applies and the federal government can only deny an accommodation or exemption if doing so is the least restrictive means of achieving a compelling governmental interest. Thus, the fact that a religious exemption or accommodation would affect a third party—by, for instance, limiting an employee’s access to contraceptive coverage—does not automatically mean that the accommodation or exemption should be denied.

Title VII Of The Civil Rights Act

Beyond RFRA, the memorandum affirms that Title VII prohibits many employers from discriminating against individuals on the basis of religion, which includes all aspects of religious observance, practice, and belief. Prohibited discrimination includes failing or refusing to hire or discharge an individual; discriminating against an individual with respect to compensation, terms, conditions, or privileges of employment; or limiting employment opportunities because of an individual’s religion. The memorandum recommends the Guidelines on Religious Exercise and Religious Expression in the Federal Workplace (Clinton guidelines), issued in 1997 under the President Clinton, as helpful examples of reasonable religious accommodations. The memorandum also notes that Title VII’s protections do not apply in the same way to religious employers who are exempted from the law’s prohibition on religious discrimination and can make religious hiring decisions.

Prohibition On Targeting Groups Because Of Their Religious Beliefs

Finally, the memorandum affirms that the government cannot target religious individuals or entities because of their religious belief. Religious entities cannot, for instance, be excluded from secular aid programs, and the government cannot officially favor or disfavor particular religious groups or denominations. The government cannot interfere in intra-denominational disputes (such as imposing nondiscrimination rules that require religious sects to accept female faith leaders, such as priests or rabbis). And the federal government cannot require religious organizations to relinquish their religious activities, character, or hiring decisions to compete on equal footing for federal contracts and grants.

Agency Implementation

The Sessions memorandum instructs agencies to “pay keen attention, in everything they do” to the principles of religious liberty and advises agencies on how to incorporate these principles as employers and when engaged in rulemaking, enforcement, contracting, and grantmaking. As employers, agencies are instructed to review all current policies and practices as well as the Clinton guidelines to ensure compliance with federal religious liberty laws. The memorandum also urges agencies to consider “practical steps to improve safeguards for religious liberty in the federal workplace.” This may include employing subject-matter experts on religious nondiscrimination rules, developing informational websites on religious accommodation rights for federal employees, and training employees on federal workplace protections for religious observance and practice.

The memorandum is, however, silent on whether Title VII prohibits discrimination against federal employees based on sexual orientation and gender identity. To date, the Department of Justice has reversed course from the Obama administration in this area by recently arguing in an amicus brief in the Second Circuit Court of Appeals that Title VII does not prohibit discrimination against employees on the basis of sexual orientation. And, in a separate memo, Attorney General Sessions recently issued guidance to his staff at the Department of Justice concluding that transgender people are not automatically protected from discrimination under Title VII.

In formulating rules, regulations, and policies, agencies must proactively consider 1) potential burdens on the exercise of religion; and 2) potential accommodations to address these burdens. In particular, agencies must ensure that they review all proposed rules, regulations, and policies for compliance with the religious liberty principles outlined in the memorandum. The memorandum suggests, but does not require, that agencies designate an officer to review proposed rules with religious accommodation in mind and consider drawing upon the expertise of the White House Office of Faith-Based and Neighborhood Partnerships and the Department of Justice Office of Legal Policy in doing so. The memorandum also directs agencies to “carefully consider and respond” to significant concerns about religious liberty that are raised by members of the public and notes that agencies can consider religious accommodation requests on a case-by-case basis—rather than in a rule itself—but that the agency must “provide a reasoned basis” for that approach.

Agencies are also instructed to consider the religious liberty principles when considering potential enforcement actions. Noting that RFRA applies to agency enforcement in addition to rulemaking, the memorandum instructs agencies to consider RFRA when setting agency-wide enforcement rules and priorities; when making decisions to pursue or continue enforcement actions; and when formulating rules in an agency adjudication. Agencies also may not target or single out religious organizations or conduct for disadvantageous treatment in enforcement priorities or actions.

Finally, agencies cannot discriminate against religious organizations in their contracting or grantmaking practices and must allow religious organizations to compete for government grants and contracts on an equal basis with nonreligious organizations. This means that agencies cannot condition contracts or grants on the relinquishment of religious hiring practices and cannot attempt to “meddle” in the internal governance affairs of religious organizations or limit an organization’s otherwise protected activities.

A Look At How The Justice Department Intends To Implement The Principles

A separate memorandum from Attorney General Sessions, released on the same day, provides an indication of how the Department of Justice will implement the religious liberty principles. This two-page memo, though brief, likely has far-reaching consequences for the positions that the Department of Justice will take in pending and future litigation and enforcement actions. The guidance:

  • Directs the Department of Justice and the U.S. Attorney’s Offices across the country to “incorporate the interpretative guidance in litigation strategy and arguments, operations, grant administration, and all other aspects of the Department’s work.”
  • Urges litigating divisions and U.S. Attorney’s Offices to consider how to best implement the principles in cases where the government has already made arguments in court that are inconsistent with the new guidance.
  • Directs Department attorneys to use the guidance in formulating opinions and advice for other agencies and alert appropriate agency officials when policy could conflict with the religious liberty principles.
  • Requires the Department of Justice’s Office of Legal Policy, in consultation with the Civil Rights Division, to review every agency action that is submitted to the Office of Management and Budget for consistency with the guidance to determine whether the agency’s action is consistent with the requirements of RFRA.

Potential Impact On ACA Implementation

The Sessions memorandum outlines the Department of Justice’s interpretation of federal religious liberty protections but is not, in and of itself, binding on agencies who must still develop policy and make decisions about religious accommodations. That said, the process established in the guidance—whereby agency actions are reviewed by the Office of Legal Policy and the Civil Rights Division for compliance with the religious liberty principles—suggests that the Department of Justice and the White House will take a far more hands-on approach to formulating agency policy on religious accommodations.

The Contraceptive Coverage Mandate

This could affect a variety of ACA rules and policies—and already has with respect to contraceptive coverage. As noted above, in two new rules released alongside the memorandum, the Trump administration broadened existing religious exemptions to the contraceptive mandate, allowing many employers, insurers, and individuals to object to contraceptive coverage on religious or moral grounds. These new rules may resolve some litigation but are likely to spur additional lawsuits by those who would challenge this interpretive change.

Section 1557 Nondiscrimination Provisions

Another key area where the guidance is likely to have an impact is on ongoing implementation and enforcement of Section 1557, the ACA’s primary nondiscrimination provision that prohibits discrimination in health care and health insurance on the basis of race, color, national origin, sex, age, and disability. In a regulation implementing Section 1557 promulgated during the Obama administration, HHS interpreted sex discrimination to include discrimination on the basis of gender identity and termination of pregnancy. Although the rule did not include a new religious exemption, it noted the continued application of many of the same federal laws outlined in the Sessions memorandum (such as RFRA and federal provider conscience laws). HHS’ interpretation with respect to gender identity and pregnancy termination discrimination was challenged in federal court by state and religious plaintiffs, resulting in a nationwide injunction that prevents HHS from enforcing those parts of the Section 1557 rule.

According to court filings, HHS is expected to issue a new proposed rule on Section 1557. Given the Sessions memorandum, a new rule on Section 1557 could reasonably be expected to include a religious exemption that is more closely aligned with the religious liberty principles. As with the changes to the contraceptive rule, doing so is likely to invite a challenge under the Administrative Procedures Act.

Beyond this, HHS could choose to issue new rules, reconsider other existing rules, or issue additional guidance on federal religious liberty laws, such as provider conscience protections, in a way that impacts ACA implementation and enforcement.  The guidance could also affect the grantmaking and contracting practices of the various divisions of HHS involving religious organizations, such as federally funded refugee resettlement programs and child welfare programs.