Powerful proclamations

After months of delays, vague promises, and frustrations from religious freedom advocates, the Trump administration issued two major documents on the same day that will establish immediate and wide-reaching religious freedom protections.

One is a regulation that has been long expected. Today the Department of Health and Human Services (HHS) widely expanded the religious exemption to Obamacare's contraceptive and abortifacient mandate.

The new regulation, called an interim final rule, goes into immediate effect. But on the court side, religious organizations like the Little Sisters of the Poor are still locked in cases with the federal government over the mandate. Even with the new rule, they will have to work out acceptable settlements, which may take time.

Originally, under the Obama administration, churches and their auxiliaries were the only religious organizations fully exempt from covering contraceptives and morning after pills. Now, after years of costly litigation, the objecting religious universities, organizations, for-profits and individuals can claim an exemption (see page 161 of the regulation for details).

In May a draft of the new HHS mandate leaked to Vox, but the administration did not follow through with issuing the actual regulation for months. Speculation is that the delay centered in the White House. HHS for its part has a number of new lawyers who previously sided with the religious organizations who objected to the Obama-era mandate.

Press accounts characterized the new exemption as a major narrowing of the HHS mandate that would severely curtail women’s access to birth control. But if Hobby Lobby is any precedent, where the Supreme Court allowed closely held for-profits an exemption to the mandate, very few employers will pursue an exemption.

"This rule doesn’t get rid of the contraceptive coverage requirement,” said Lori Windham, senior counsel for Becket (previously Becket Fund for Religious Liberty). "It doesn’t get rid of the enormous fines for those who violate it. It won’t change anything for the overwhelming majority of those who currently have this coverage.”

The second major development today was a memo from the Department of Justice, a 20-point guidance on handling religious freedom government-wide. The new regulation from HHS is significant, but the DOJ memo will likely be more wide-reaching. The Department of Justice has a $29 billion budget, and over 10,000 attorneys working on its behalf. When it deploys its resources in a certain direction in the justice system, the effects ripple.

A few points from the memo stand out: In point No. 6, the DOJ references the Trinity Lutheran decision from the Supreme Court last year to say that the government “may not exclude religious organizations as such from secular aid programs.” Under this section the memo expressly endorses vouchers for religious schools.

Becket is currently pursuing a case against the federal government’s ban on FEMA aid to houses of worship, based on the Trinity Lutheran precedent. This could position the DOJ on Becket’s side.

In point No. 15, the DOJ rejects the “third party harm” argument often leveled in religious freedom cases. That was a big argument against religious organizations in the mandate cases, that providing them with a religious exemption would harm female employees. The memo reads: “The fact that an exemption would deprive a third party of a benefit does not categorically render an exemption unavailable.”

In point No. 19, the DOJ affirms that religious employers can hire adherents to their religion without violating nondiscrimination statutes in Title VII. This has implications for ongoing lawsuits over the application of Title VII to sexual orientation, for example. The memo also underlines that nonreligious employers under Title VII must do their best to accommodate religious practices of employees, like a Muslim wearing a headscarf that violates company dress code (an accommodation that Abercrombie & Fitch failed to make, resulting in a recent major Supreme Court case).

Attorney General Jeff Sessions wrote that he had sent the memo to the heads of every executive department and agency. He also instructed all federal attorneys to comply with the guidance.

“Having the U.S. Department of Justice and indeed having the entire executive branch of the federal government, which is huge and heavily resourced, having them on your side is extremely helpful,” said University of Missouri School of Law’s Carl Esbeck, a religious freedom scholar. “So often in pleading religious liberty, it’s just us. The little religious claimant, the little church in the dell.”

While the memo does not have the force of law, it is “huge with a capital H,” according to Esbeck. It's a guidance from top federal employees to all lower federal employees. It will direct the positions the government takes in courts, and Esbeck speculated that under the memo the federal government could reject the de-accreditation of a religious college if the accrediting agency infringed on a college’s religious freedom.

Groups like the American Civil Liberties Union can’t challenge the entire memo with any standing in court. They must wait for the memo to inflict what they consider a harm in a specific instance in order to sue.

“They can’t sue to enjoin the whole thing,” said Esbeck. “They can just sue to stop the one little change that hurt them. So the other side is truly disadvantaged.” Esbeck emphasized that federal judges, not the attorney general, will have the final say on these disputes—but “it’s nice to have the 800-pound gorilla on my side.”