Tag archives: Religious Liberty

Do No Harm Act” Threatens Our First Freedom

by Luke Isbell , Mary Beth Waddell

June 27, 2019

Yesterday, the House Committee of Education and Labor held a hearing on the Do No Harm Act. While this bill purports to prevent harm, it would actually significantly harm religious believers by gutting our most prominent religious liberty statute, the Religious Freedom Restoration Act (RFRA).

Pitched as an act that would prevent abuse of religious freedom, and “restore” RFRA’s “original intent,” the bill would actually treat religious believers differently based on the circumstances of their claim and dictate when RFRA can be applied. Instead of all individuals having access to RFRA as a defense against a government burden on their First Amendment right to freely exercise their religion, the Do No Harm Act explicitly excludes some individuals from RFRA’s protections.

A Threat to a Fair Hearing

At the hearing, Representative Mike Johnson (R-La.), a constitutional lawyer with nearly 20 years of experience working on religious freedom, testified how religious freedom is “often referred to as our first freedom.” The Founders of the United States recognized that everyone should be able to live their lives according to their deeply held beliefs, and never be forced by the government to act in a way contrary to their beliefs. The protection and flourishing of religious liberty was understood to be so vital to the foundation of our nation that it was written as the First Amendment to the Constitution: “Congress shall make no law establishing religion OR prohibiting the free exercise thereof.” As apparent from this hearing, those on the Left seem to misunderstand the meaning of this constitutional right and the protections that flow from it.

The sentiments expressed by Rep. Johnson used to be understood by both sides of the aisle, a point that he made at this week’s hearing. They certainly were back in 1993 when RFRA was passed unanimously by the House, 97-3 by the Senate, and then signed into law by President Bill Clinton. RFRA promises that a fair hearing will be given to all individuals whose religious freedom has been infringed by the government. That’s it. It does not favor any one ideology over the other or predetermine an outcome. As Matthew Sharp, Senior Counsel at Alliance Defending Freedom, testified at the hearing, even when RFRA is used the government often wins.

Disagreement is Not Discrimination

Many proponents of the Do No Harm Act claim it is necessary because discrimination is happening in the name of religious liberty under RFRA. However, there is a big gap between acting on personal convictions and discriminating, or forcing others to believe the same as you. Disagreement is not discrimination. RFRA does not allow individuals to force others to believe the same as them. That is not religious freedom, and RFRA does not protect it.

The Do No Harm Act would be the cause of harm and discrimination, not the alleviator of it. The Little Sisters of the Poor used RFRA in their fight against the government trying to force them to provide contraceptives, but they would no longer be able to bring a RFRA claim under the Do No Harm Act.

The Displacement of Children in Need

A few Democrats made a fuss about the Department of Health and Human Services (HHS) using RFRA to grant Miracle Hill Ministries, a faith-based adoption and foster care agency in South Carolina, a waiver from Obama-era regulations still in effect that would force them to violate their conscience or stop serving children in need. Democrats bemoaned the granting of this waiver in the hearing and claimed that such waivers are harmful to the children in need of loving homes.

In fact, the opposite is true. When Catholic Charities was shut down in Illinois, nearly 3,000 children were displaced. When Philadelphia cut its contracts with two of their 30 partner agencies because they were faith-based, foster parents (one of whom was a “foster parent of the year”) were left with empty homes and siblings faced the possibility of not being placed together. Ironically, all this occurred after the city put out an urgent call for hundreds of new foster homes. Birth moms have also expressed their desire to use faith-based agencies to help them navigate the darkest time in their life and to place their child in a home of a particular faith. They deserve that option, but would see it shut down if proponents of the Do No Harm Act get their way.

In Michigan, St. Vincent Catholic Charities is one of the most successful adoption agencies in the state, performing 90 percent better than the other agencies in its area. However, when Michigan attempted to cut ties with the religious organization (which would have severe negative impacts as noted above), the organization was able to team with Becket Law to argue that their rights were being violated. Discovery in the case found that they were clearly being targeted because they were faith-based. Children in their care had been adopted by couples identifying as lesbian, gay, bisexual, or transgender (LGBT) through other agencies in the state. The same-sex couple who sued also lived closer to three or four other agencies they could have worked with. Yet the Do No Harm Act would strip Catholic Charities of the ability to even have their claim heard. This case is ongoing.

A Threat to the Foundation of Peaceful Co-existence

Religious liberty and non-discrimination are not at odds—rather, they promote each other by allowing people to freely act on the values that are most important to them.

Religious freedom was a founding principle of our nation, and it led to the ability for people of all faiths to live together peacefully—because the government never forced them to act against their personal beliefs. RFRA is the door that ensures people will always have recourse in court if the government violates this freedom, yet the Do No Harm Act would shut that door to many.

Mary Beth Waddell is the Senior Legislative Assistant at Family Research Council. Luke Isbell is an intern at Family Research Council.

3 Religious Freedom Cases to Keep an Eye On

by Luke Isbell

June 21, 2019

Yesterday, the Supreme Court of the United States ruled that a cross-shaped memorial in Bladensburg, Maryland does not violate the Establishment Clause. The memorial honors veterans that sacrificed themselves to defend our nation, and the ruling by SCOTUS sets a new precedent for the constitutionality of religious memorials across the nation. This is a huge win for the right to religious freedom in the public sphere, but there are several other critical battles still being fought on the issue of religious freedom.

Free expression of personal beliefs in public and at work is the cornerstone of our pluralistic society, government, and free market. At Family Research Council, we actively track attacks on religious freedom in our Hostility to Religion Report, which we will be updating soon. Here are three important ongoing court cases that you need to be aware of:

1. Oregon Family Threatened and Sued for Refusing to Bake a Cake for a Same-Sex Union

Melissa and Aaron Klein owned Sweet Cakes by Melissa, a bakery located in Gresham, Oregon. When they declined to bake a cake for a same-sex union, they quickly became a target of a lawsuit. The same-sex couple that requested the cake filed a complaint against the Kleins with the Oregon Bureau of Labor and Industries (BOLI). When BOLI ruled against the Kleins, stating that they discriminated against the couple by not baking a cake, the Kleins were forced to pay $135,000 and closed their shop in September of 2013. Significant public backlash caused the Kleins to be fearful of their safety, especially after receiving threats against their children. The family refused to back down from fighting for their religious beliefs, and they appealed the case to the Oregon Court of Appeals in 2016, but the court declined to hear the case. On June 17, 2019, after appealing to the Supreme Court, SCOTUS remanded the case back to the lower Oregon courts—advising them to reconsider the case in light of the decision made in the Masterpiece Cakeshop decision.

2. Church Sues Against Washington State Requirement to Cover Cost of Abortions

In March of this year, Washington state passed legislation that would force any insurance plan that covers maternity costs to also cover abortions. Horrified of being forced to support something directly opposed to their pro-life beliefs, Cedar Park Assembly of God filed a suit against the state’s new law. Cedar Park Assembly actively serves in pregnancy centers and assists with foster children and infertile couples, and the church’s pro-life views are directly opposed to providing staffers with insurance that would pay for abortions. No church or organization that firmly and actively believes in the right to life should be forced to pay for abortions. Cedar Park Assembly of God has partnered with Alliance Defending Freedom to challenge the unconstitutional law in court. 

3. Michigan Attempts to Discriminate Against Faith-Based Adoption and Foster Agencies

For 70 years, St. Vincent has provided foster and adoption care for thousands of children in need in Michigan—and they have made a huge impact. In 2017 alone, St. Vincent performed better than 90 percent of agencies in its area with finding children a loving home. However, the Attorney General of Michigan announced in March of 2019 that they were going to permanently end the state’s relationship with faith-based adoption and foster care agencies. The policy claims to be an attempt to “protect” same-sex couples that would be refused from adopting from a faith-based organization, but St. Vincent has always referred same-sex couples to other adoption agencies when approached. Ultimately, not only would the state refusing to work with organizations like St. Vincent further worsen the chances of children finding the homes they desperately need, but such a policy is in clear contradiction to religious liberty that is integral to life in the United States. On April 15, 2019, St. Vincent partnered with Becket Law to sue against Michigan’s damaging policy.

These three cases exemplify the attacks on religious liberty that are becoming increasingly frequent. The right to freedom of conscience—the ability to not be forced to do something that is against your religious beliefs—fundamentally defined the founding of our nation. Religious liberty fosters the ideological plurality that allows people of all faiths to find solidarity in the United States, and the pluralism that religious liberty creates forms the groundwork for our society.

Tragically, in the name of “non-discrimination,” these fundamental rights are now being strategically stripped away. Ironically, policies intending to be non-discriminatory can be the most discriminatory policies of all.

If laws are passed to prevent people from living and working according their personal religious beliefs, the only result will be discrimination against all in favor of none.

Luke Isbell is an intern at Family Research Council.

The Religious Freedom of Public Officials Is Under Attack. These Three Aren’t Backing Down.

by Worth Loving

May 15, 2019


The liberty to worship our Creator in the way we think most agreeable to His will is a liberty deemed in other countries incompatible with good government and yet proved by our experience to be its best support.” - Thomas Jefferson

Often called America’s “first freedom,” religious freedom was key to our founding. In fact, it’s no accident that the Founders listed it as the first freedom in the Bill of Rights. It was the reason the Pilgrims made the treacherous journey across the Atlantic—to escape persecution and establish a haven of religious freedom.

In both their public and private lives, the American Founders were not shy about expressing their faith. But today, there is a growing movement to silence the religious expression of public officials, particularly Christians. On Easter Sunday, Arizona Governor Doug Ducey, a born-again Christian, posted John 11:25 on his government social media accounts. The verse reads, “Jesus said to her, ‘I am the resurrection and the life. He who believes in me, though he may die, he shall live.’” Next to the picture was the caption “He is risen! Have a happy and blessed Easter!” The Arizona Republic quickly denounced the post as a violation of the separation of church and state, arguing that Gov. Ducey cannot use his government social media accounts to promote a particular religion. Yet when former President Obama wished everyone a “Happy Ramadan” in 2013 and 2015 from his official White House account, he was never criticized for endorsing Islam.

But Gov. Ducey isn’t the only public official who has faced such unfair scrutiny. NASA Administrator Jim Bridenstine was attacked a few days prior for his comments about a Christian ministry. At a fundraiser for Capitol Ministries, an organization whose sole mission is to reach every public servant with the Gospel of Jesus Christ, Bridenstine gave a few words of praise for the ministry: “I love what Ralph said earlier: We’re not trying to Christianize the US government. We believe in an institutional separation, but we also believe in influence. And that’s a big distinction and an important distinction, and that’s why I love this ministry.” Once again, leftist groups were quick to denounce Bridenstine’s comments, claiming that he used his government position to endorse a religion and violated the Establishment Clause. Yet these groups were strangely silent when former President Obama spoke at fundraisers for Planned Parenthood and even called for God’s blessing on the abortion giant.

The Left won’t even leave the Second Lady alone. In January, Karen Pence was lambasted for teaching at a Christian school that holds to a biblical view of sexuality, meaning that individuals who identify as LGBT are prohibited from working at the school. Apparently, the Left believes any association with Christianity by a public official is tantamount to violating the Establishment Clause.

It seems the Left is intent on silencing Christians who hold public office from expressing their faith. However, they seem to conveniently forget that our nation was founded on freedom of religious expression and that our Founding Fathers actively exercised that freedom while holding public office. In fact, as President, George Washington, John Adams, and Thomas Jefferson all called for national days of prayer. In the states, many governors including Samuel Adams, Elbridge Gerry, John Hancock, Caleb Strong, and Jonathan Trumbull all called for days of prayer and repentance.

Furthermore, the First Amendment is clear that there should be “no law respecting an establishment of religion.” This was directly in reference to the Church of England, which the former British colonies were required to support and attend. Under the new Constitution, Americans were free to support or not support the religion of their choice without any fear of government repercussion—and they don’t forfeit this right just because they serve in public office. It is just silly to claim that the comments and actions of Gov. Ducey, Jim Bridenstine, and the Second Lady “established” a religion.

One doesn’t leave their religion behind when they are elected or appointed to a government office. Yes, public officials are rightfully held to a higher standard. But one’s faith remains just as much a part of him or her as it was before, and we remain free to express it while holding public office.  

Gov. Ducey was quick to respond to his critics and showed no intentions of backing down: “We won’t be removing this post. Ever. Nor will we be removing our posts for Christmas, Hanukkah, Rosh Hashanah, Palm Sunday, Passover, or any other religious holiday. We support the First Amendment and are happy to provide copies of the Constitution to anyone who hasn’t read it.” Responding to The Arizona Republic, Ducey said: “With respect to your ‘experts,’ people don’t lose the right to free speech when they run for office. So, no, we STILL won’t be taking the post down. Not now, not ever.”

Gov. Ducey is right—it might do the Left some good to read the Constitution. They’ll be surprised to find that “separation of church and state,” which they are so quick to espouse, is found nowhere in the Constitution. In fact, it is from a letter that Thomas Jefferson wrote in 1801 to a Baptist church congregation from Danbury, Connecticut—and the letter states just the opposite of what the Left calls for today. A committee from the church had written a letter to President-elect Jefferson, congratulating him on his election and urging him to protect religious freedom. President Jefferson wrote “that religion is a matter which lies solely between man and his God.” Jefferson assured the Danbury Baptists of his commitment to protecting the freedom of religion. He went on to quote the establishment clause and that it had built “a wall of separation between church and state.” Jefferson still made public expressions of faith as president but never came close to establishing a religion as defined by the First Amendment.

The Left’s double standard is unbelievable. While advocating for tolerance, they demand that every public official submit to their agenda. Those that do not face a complete sabotage of their career. Because of this, attacks like the ones on Gov. Ducey, Jim Bridenstine, and Karen Pence will continue to escalate on Christians in public office. Like Gov. Ducey, we must be ready with swift responses. The key to preserving our freedoms—including religious freedom for public officials—lies in exercising them. If we don’t exercise those rights, we will lose them. But as long as we keep fighting, religious liberty will remain alive and well.

Asia Bibi Is Finally Free!

by Arielle Del Turco

May 8, 2019

This week marked a long-awaited victory for religious freedom when Asia Bibi, a Christian woman who spent eight years on death row for a blasphemy charge in Pakistan, was finally reunited with her family in Canada.

As confirmed by her lawyer Saif Ul Malook earlier this morning: After being freed from death row last year, the mother of five has arrived in Canada, on the heels of “repeated death threats from religious extremists in Pakistan, following the quashing of her conviction for blasphemy.”

Bibi had been separated from her family and was living in safe houses since her sentence was thrown out last year. (Bibi was convicted in 2010 and sentenced to death after she was accused of insulting the name of the Prophet Mohammed during a dispute with Muslim colleagues.) Her children are already in Canada, and she now joins them there.

It is encouraging to see Bibi finally released to a safe destination after her plight and quest for justice which lasted nearly ten years.

While this development is positive, it serves to highlight the continued threat to religious liberty posed by blasphemy laws.

Just last week, Family Research Council released a report on the status of apostasy, blasphemy, and anti-conversion laws (which threaten the ability to freely live out and choose or change one’s faith) around the world, and the threat they pose to religious freedom.

The most widespread of these types of laws, blasphemy laws prohibit insults to religion. Featured in many Muslim countries, these laws are often abused and used to settle unrelated disputes—this is exactly what Bibi claimed happened to her.

Even as we celebrate this victory, we must continue to monitor the status of these laws which inhibit the freedom of religious expression. 

Apostasy, Blasphemy, and Anti-Conversion Laws Are Violating Religious Freedom

by Family Research Council

May 2, 2019

There is unprecedented religious persecution around the globe. In recent years, the Pew Research Center has found increasing governmental and social hostility toward religious believers worldwide. For the last ten years, Christians have been harassed in more countries, including the United States, than any other religious group, and in 2016, one or more religious groups were harassed in 187 countries globally.

While the specific threats to religious freedom vary in type and intensity, one common source is the legal and cultural support for apostasy, blasphemy, and/or anti-conversion laws, which often threaten the freedom to choose and/or change one’s faith.

  • Apostasy laws punish people who “apostasize” and convert away from Islam. Across much of the Muslim world, apostasy laws—backed by social pressure—are used to deter apostasy and sometimes punish even allegations of the crime. These laws prevent Muslims from freely choosing their faith— whether Christianity or anything else.
  • Blasphemy laws generally prohibit insults to religion and are the most widespread of these three types of laws. In many places, while still on the books, such laws are no longer enforced or even used. But in other places, again in many Muslim majority countries, they are often abused when allegations of blasphemy are made against religious minorities—often with no evidence—to settle unrelated disputes and vendettas.
  • Anti-conversion laws, quite simply, prohibit people from converting to another religion. Primarily in place in parts of the Hindu and Buddhist world, anti-conversion laws are used by governments to maintain a majority of the population within their preferred religion.

While threats to religious freedom arise from other sources, these three types of laws and the cultural support behind them are major threats to the freedom to choose one’s faith—and thus to religious freedom worldwide.

Punishment for those convicted of violating such laws can include marriage annulment, property confiscation, prison sentences, or death sentences. A number of countries can impose the death penalty for violations of such laws, including: Afghanistan, Brunei, Iran, Malaysia (in certain states), Maldives, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, the United Arab Emirates, and Yemen.

Additionally, a mere allegation of a violation often results in intense social hostility from one’s community and family members, who retaliate with anything from slight harassment all the way up to violence resulting in death.

Drafted out of the ashes of the Holocaust, the Universal Declaration of Human Rights (UDHR) proclaims in Article 18 that “[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” (emphasis added). The laws listed and described here, and the social acceptance behind them, are a direct threat to religious freedom as articulated in the UDHR.

FRC’s new publication Apostasy, Blasphemy, and Anti-Conversion Laws is a list of countries that have apostasy, blasphemy, and/or anti-conversion laws on the books, though not all such laws are still actively used. Moreover, some are not likely to be used or are effectively nullified by other legal measures or constitutional rights which take precedence. However, for purposes of understanding where these laws have been or are in place, they have been left in this publication.

Examples of enforcement and cultural impact are provided for some of the countries where these laws are still enforced or have influence. When we understand how these laws work, and how they serve as obstacles to religious freedom around the globe, we can better advocate for the freedom of all people worldwide.

Read the full report here.

Also, don’t miss a discussion on this new report with FRC President Tony Perkins and Travis Weber, the Director of FRC’s Center for Religious Liberty.

Supreme Court Will Determine Whether “Sex” Means “Sex”

by Peter Sprigg

April 23, 2019

LGBT activists want “sexual orientation” and “gender identity” (“SOGI”) to be protected categories in federal non-discrimination laws. They have been using a two-pronged attack to try to achieve this goal—working through both Congress and the courts.

In Congress, they are pushing a sweeping bill that would add sexual orientation and gender identity to virtually every federal civil rights law. But in the courts (and some quasi-independent agencies like the Equal Employment Opportunity Commission), they have promoted the idea that federal law already outlaws SOGI employment discrimination. The theory is that discrimination based on “sexual orientation” and “gender identity” is actually a form of discrimination based on “sex”—which was outlawed in the Civil Rights Act of 1964. (Note that these two approaches are in some ways contradictory—if the judicial theory is correct, then the Equality Act is largely superfluous.)

The latter of these two approaches has now taken a huge step closer to resolution. On April 22, the U.S. Supreme Court agreed to take up three cases addressing the SOGI issue (these cases will be heard in fall of 2019).

In two of the cases (Bostock v. Clayton County and Altitude Express v. Zarda), the Court will decide the “SO” question—whether discrimination against an employee due to “sexual orientation” is included in the prohibition on discrimination “because of … sex” contained in the Title VII of the Civil Rights Act of 1964.

In a third case, R.G. & G.R. Harris Funeral Home v. EEOC, the Court will decide the “GI” question—whether Title VII’s prohibition on discrimination “because of … sex” includes a prohibition on discrimination against transgender people based on (1) their status as transgender or (2) the “sex stereotyping” theory derived from Price Waterhouse v. Hopkins (“sex stereotyping” initially meant one couldn’t discriminate against, for instance, a man for wearing pants that looked feminine—but has now been used to claim one could not discriminate against a man for wanting to identify as a woman).

When Congress prohibited employment discrimination based on “sex” in the Civil Rights Act of 1964, both their intention and the plain meaning of the word indicated that they were prohibiting discrimination against an individual because the person is biologically male or biologically female. The Supreme Court should decline the invitation to radically re-write the statute by expanding its meaning to cover “sexual orientation” and “gender identity.” Even Justice Ruth Bader Ginsburg, writing years ago about sex nondiscrimination protections in the Equal Rights Amendment, refused to countenance the idea that they would do away with simple male/female distinctions in the context of bathrooms.

The failure of LGBT activists to achieve their goals through the democratic process is no excuse to simply bypass that process and obtain their goal by judicial fiat instead.

FRC believes that SOGI laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous (like race and sex), or in the U.S. Constitution (like religion). We also believe such laws pose a threat to religious liberty in many situations, as was an issue in the Harris case that the Court will hear.

At the end of the day, the core issue before the Court in these cases is whether it is within the legitimate power of judges to suddenly rewrite a 55-year-old statute. The answer is no.

Defending Family Values Across the Globe

by Travis Weber

April 10, 2019

This past weekend I was in Bogota, Colombia, to attend the 2019 Transatlantic Summit of the Political Network for Values—a conference where socially conservative legislators and activists gather from around the world to discuss the pressing concerns of life, family, and religious liberty. Many of the members of this network—which has asked me to serve on its committee of experts—come from primarily Catholic areas in Latin America and Europe, but share the concern of evangelicals in the United States that the historic Christian positions on these issues are being threatened. Meeting inside of the magnificent Congress of the Republic of Colombia, it became clear that there is much we can—and should—work on together.

In addition to remarks by pro-life and pro-family political leaders, the conference featured impassioned speeches like that of Obianuju Ekeocha, a Nigerian pro-life activist living in the UK. Obianuju rose to prominence after penning an open letter against Melinda Gates for pushing population control on Africa, and in addition to her day job as a scientist, she heads the pro-life organization Culture of Life Africa.

One of the most promising aspects of this gathering was the number of young people, not only in attendance, but who are seeking to serve their countries through political leadership. The young Colombian leader Angela Hernandez, who I met several years ago in Belgium at the same conference, again gave a fiery defense of the family this year.

Near the end of the conference, I spoke about FRC’s efforts to pass the Born-Alive Abortion Survivors Protection Act and end birth day abortion here in the U.S., in light of the increasing radicalism of the Democrat Party on this issue. When we have our own elected leaders openly defending infanticide, we know the time has come for action—and prayer.

We in the United States must remember that there are many fellow believers around the world who share our commitment to life, family, and religious liberty. This year’s Political Network for Values Conference was an encouraging reminder of that. May we continue to work together with all allies—foreign and domestic—to advance faith, family, and freedom.

How to Protect Religious Minorities in the Public Square (Part 5 of 5)

by Family Research Council

March 28, 2019

Read Parts 1, 2, 3, and 4

Religious minorities, like all Americans, want the law to protect their right to the free exercise of religious beliefs in the public square. But the Lemon test and its related cases and doctrines have led to the scrubbing of religious practice from the public square and do not adequately protect them.

Instead, an Establishment Clause doctrine that, in Thomas Jefferson’s words, reflects the clause’s meaning at the “time when the Constitution was adopted” and “recollect[s] the spirit manifested in the debates” benefits everyone. This is the originalist approach. It ensures judicial objectivity and empowers the political branches to accommodate religious minorities.

Critics of the originalist approach argue that the Lemon test and related cases should stay in place. Yet they shouldn’t, for they are not faithful to the Constitution and fail to protect religious liberty, including for religious minorities. Moreover, the cases we have discussed and the laws and executive action we have highlighted show that the courts should not be the first stop in protecting religious freedom. In fact, they should be the last.

A historical approach for the courts and a reliance on the flexibility and responsiveness of the political branches is the best formula for a robust protection of religion—all religions—in the public square.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

The Political Branches Are Better Equipped to Protect Minority Religions (Part 4 of 5)

by Family Research Council

March 27, 2019

Read Parts 1, 2, and 3

The political branches have demonstrated that they are better equipped to protect religious minority rights and respond to America’s increasingly pluralistic society. In light of the court decisions discussed earlier, consider the following:

  • The Religious Freedom Restoration Act, signed into law by President Bill Clinton in 1993, created “very broad protection for religious liberty.” It received unanimous support in the U.S. House of Representatives and near-unanimous support in the U.S. Senate. It applies to all sincerely held religious beliefs. It came after the Supreme Court ruled against a Native American’s right to exercise his religious beliefs.
  • The Army guaranteed strong protection for religious practices, specifically the practices of observant Sikhs, through Army Directive 2017-03. It directs “Army uniform and grooming policy to provide wear and appearance standards for the most commonly requested religious accommodations.”
  • The Department of Veterans Affairs, recognizing the religious diversity of its servicemembers, has funeral guidelines to honor each fallen soldier’s religious convictions.
  • Based on Title VII of the Civil Rights Act of 1964, the Supreme Court upheld a Muslim teenage girl’s right to wear a hijab—a headscarf worn for religious reasons—without discrimination in the hiring process.
  • The Department of Defense issued Instruction 1300.17(4)(a), which states that “[t]he DOD places a high value on the rights of members of the Military Services to observe the tenets of their respective religions.” The Instruction directs that “[r]equests for religious accommodation will be resolved in a timely manner and will be approved,” so long as they do not “adversely affect mission accomplishment.”
  • Congress passed the National Defense Authorization Acts for fiscal years 2013 and 2014, which provides for the “[e]nhancement” and “protection of rights of conscience.”
  • The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 permits the placement of commemorative monuments in memory of “service in the Armed Forces” in Arlington National Cemetery, and it does not prohibit the inclusion of religious symbols on those monuments.
  • In 2011, the executive branch accommodated Amish religious beliefs regarding the issuance of Social Security numbers.
  • Federal law allows religious objectors to Social Security taxes—notably including the Amish, one of whom lost a Free Exercise Clause challenge to such taxes in 1982—to apply for exemptions for themselves and their employees.

Some argue that an originalist approach would allow a government to “endorse its preferred religious teachings and be candid about what it was doing.” Others argue that an originalist approach would not “address the danger that the majority will, through government endorsements of its own faith, marginalize minority groups.”

The facts do not bear this out. Moreover, as Establishment Clause expert Professor Michael McConnell states, “the Court’s intervention over the last forty years has made things worse, not better.” Of course, courts have an important role in protecting religious minorities. But as Professor Hillel Y. Levin argues, the need for judicial intervention is the exception and not the rule.

No government institution—including the judiciary—can perfectly protect against the human rivalry and selfishness that critics fear would take hold under an originalist approach. But as a matter of structure, the political branches have greater capacity to protect the rights of religious minorities and to respond to bad policy.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

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