The U.S. Department of Justice released a memo last week directing the executive branch to expand religious liberty protections, particularly in the areas of parental rights and religious autonomy, to comply with recent U.S. Supreme Court rulings.The new guidance is the first to be issued in nine years and will reflect important new precedents handed down by the nation’s high court in the last decade which will significantly strengthen existing religious liberties for all Americans.
For example, in Mahmoud v. Taylor, the Supreme Court gave parents the right to opt their children out of LGBT-themed instruction on religious grounds. In Carson v. Makin, the high court ruled that a state’s tuition assistance program may not exclude religious schools. The court also ruled against the Bremerton School District for firing a high school football coach for praying silently on the field. The decision rendered in Our Lady of Guadalupe School v. Morrissey-Berru gave faith-based schools the right to make hiring decisions without government interference.
The guidance also reminds that the Establishment Clause, which forbids the government from coercing religious observance or discriminating against individuals on the basis of religion, must be used in the light of historical practices and understandings. “It does not compel the government to purge from public life anything an objective observer may think endorses religion. Religious liberty in the public square and private religious expressions by government employees cannot be proscribed via heckler’s veto.”
It also forbids the use of this clause as a basis for targeting religious conduct, such as treating a conduct lawful when undertaken for secular purposes, but as unlawful if used for religious reasons. “For example, government may not attempt to target religious persons or conduct by allowing the distribution of political leaflets in a park but forbidding the distribution of religious leaflets in the same park.”
Similarly, the government may not use discriminatory enforcement of laws as a proxy for religious discrimination. For example, “the National Park Service may not require religious groups to obtain permits to hand out fliers in a park if it does not require similarly situated secular groups to do so,” the guidance explains.
Government agencies are also warned against interfering with the autonomy of religious organizations. For example, “Government may not impose its nondiscrimination rules to require Catholic seminaries to accept female candidates for the priesthood. Nor may government require that religious organizations employ personnel whose personal conduct conflicts with their religious tenets in roles key to the organization’s religious mission.”
Most importantly, the guidance gives clear direction on the rights of parents to direct the religious upbringing of their children. “Parents have the right to direct the religious upbringing and education of their children,” the missive reads. “This right extends beyond a mere right to teach religion in the confines of one’s home and encompasses the choices parents make for their children outside the home. Government policies that substantially interfere with the religious development of children violate this right. Government may not choose to condition the availability of public benefits, such as public schooling, upon parents’ willingness to surrender their religious freedom.”
“Religious liberty is one of our Nation’s founding principles and a fundamental right guaranteed by the Constitution,” said Acting Attorney General Todd Blanche. “It is essential that federal agencies fully respect and protect the ability of all Americans to live out their faith in daily life, including in their interactions with the federal government.”
Commenting on the value of this new directive, Liberty Counsel Founder and Chairman Mat Staver said, “The updated religious liberty guidance from the Department of Justice is a testament that religious freedom is not a right granted by government, rather it is a right to be protected by government. A government should act as a shield for religious liberty, parental rights, and religious autonomy, and should never be a weapon that targets, penalizes, or silences people of faith. Religious people, parents, and organizations should never be forced to choose between their beliefs and full participation in public life.”
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