In May, when President Donald Trump issued a long-awaited executive order on religious freedom, reactions were mixed. Some thought it was so vague as to be almost useless. It did not directly address President Barack Obama’s contraceptive mandate but passed the buck to various federal agencies to develop detailed guidance on religious freedom.
I called his action “an executive order short on orders,” saying it was a good start “but more is needed.”
The “more” has now been released — in the form of a clear exemption from the contraceptive mandate for those with moral or religious objections, and a memorandum from the U.S. attorney general on how this administration will construe and enforce federal laws.
I want to focus on the memorandum because in my view, it’s a masterpiece. In eight pages — followed by a 17-page appendix analyzing constitutional and statutory protections for religious freedom — it presents a consistent and well-documented framework for settling cases where free exercise of religion may be in tension with other values.
This is not a partisan analysis. It cites Supreme Court opinions by “liberal” and “conservative” justices, and endorses religious freedom guidelines issued by President Bill Clinton in 1997. It illustrates that views now condemned by some as right-wing peculiarities were, until very recently, the consensus of lawmakers across the political spectrum.
The Religious Freedom Restoration Act, cited by the Supreme Court to exempt Hobby Lobby from the contraceptive mandate, was sponsored by liberal Democrats and approved almost unanimously by Congress in 1993.
The attorney general’s memo underscores vitally important aspects of this issue that are in danger of being forgotten.
First, religious freedom is a founding principle of our nation. “In the United States, the free exercise of religion is not a mere policy preference to be traded against other policy preferences. It is a fundamental right.” That right includes beliefs the government may find strange or mistaken, as long as they are sincerely held.
Second, religious freedom includes actions (and decisions to abstain from actions), not only thoughts and words. This counters the Obama administration’s tendency to reduce religious freedom to “freedom of worship,” as though believers have rights in church or synagogue but not when they live their faith every day.
Under that narrow policy, “houses of worship” were exempt from paying for morally unacceptable drugs and devices, but religious charities were not. As I and others have said, by that standard Jesus and his apostles would not be “religious” enough because they healed the sick.
Third, both individuals and organizations (including organizations seeking to participate in public programs) have religious freedom.
The idea that religious freedom is only or primarily for individuals may suit some versions of Protestantism; but in Catholicism and Judaism, among other religions, it is the believing community that is in covenant with God and confirms the faith of its members. Catholics pray that God will “look not on our sins, but on the faith of our church.”
A religious organization can require that employees’ words and actions do not violate its precepts.
Finally, there are limits to this as to other basic rights. Federal employment laws demand accommodation of employees’ religion unless that poses an “undue hardship” on the company.
Under the Religious Freedom Restoration Act, the government may burden religious freedom if its action serves a “compelling governmental interest” in the way that is “least restrictive” of that freedom. The burden of proof rests with those who would invoke these limits.
Political decisions come and go, but we can hope the clarity this document provides on one of our most basic freedoms has staying power.
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.
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