A common sense clarification

Imagine a Veterans Affairs doctor praying with a patient, or a government worker posting a flyer about a church event on an informal, employee-to-employee informational bulletin board.

Many on the left view these actions as unconstitutional. They are not unconstitutional, of course, not even close. But, new guidance from the Office of Personnel Management, the lead human resources agency of the federal government, seeks explicitly to protect the rights of government workers to engage in such activities, always with the caveat that any interpersonal attempt at sharing one’s faith at work must respect the wishes of the other party to the conversation.

The new memorandum provides a robust view of federal employees’ religious liberties in the workplace, and it could have sweeping influence. With almost 2.4 million employees, the United States government is the largest employer in the United States, outpacing corporate giants like Walmart and Amazon (the only two private companies with over one million employees). Like any employer, the government has a basic role to regulate its workspaces and buildings, whether office cubicles or military bases, and the OPM memorandum is another building block in the Trump Administration’s continued effort to protect religious freedom.

Though all Americans are protected by the First Amendment, including its promises of free speech and free exercise of religion, the U.S. Supreme Court has always recognized that these clauses operate differently for government employees than for everyday citizens. The government as employer, for instance, can search an employee’s workplace desk or locker for contraband drugs even if it would need a judicial warrant to search the same person’s home. Many readers of WORLD may remember two years ago when the Supreme Court affirmed the right of Coach Joe Kennedy, a football coach at a public high school, to pray publicly after a game ended. The case put front and center the previously ambiguous balancing between the employee’s conscience rights and the employer’s interests in an efficient workplace.

The Biden Administration pressed its own agenda through the federal workforce, using the Transgender Day of Visibility in 2023 to announce guidelines for transgender employees within the federal workforce. In fact, the Biden Administration’s commitment to diversity, equity, and inclusion (DEI) ran rampant throughout the various agencies and departments of the government, reaching its apex in a 2021 executive order entitled “Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.” That was followed by an all-agency implementation strategy led by OPM. Thankfully, that order has since been repealed by President Trump.

Predictably, secularist advocates on the left have already begun screaming bloody murder about the Trump OPM’s new guidance on religious practices in the workplace. Mikey Weinstein, for instance, an attorney with the Military Religious Freedom Foundation, decried “the latest Nazi directives” as “eras[ing] the final obstacle for civilian supervisors to proselytize their otherwise helpless subordinates with the weaponized gospel of Jesus Christ.” He expressed his “revulsion with this latest directive of fundamentalist Christian supremacy, triumphalism, as well as universal and profane disrespect and brutality.”

Similarly, the Freedom From Religion Foundation called the OPM guidance “outrageous and unconstitutional,” “shocking,” “extremely problematic,” and “the implementation of Christian nationalism in our federal government.”

But most Americans will view these clarifications as common sense. And the OPM action may even be required by law in the wake of the U.S. Supreme Court’s excellent recent decision in Groff v. DeJoy, which reaffirmed that the federal civil rights law (Title VII) provides meaningful protections for religious employees in public and private workplaces nationwide.

We can hope that state and local governments and private employers will model OPM’s new guidance for their own settings. As then-Attorney General Jeff Sessions noted in a 2017 legal memorandum, federal standards “provide useful guidance to private employers about ways in which religious observance and practice can reasonably be accommodated in the workplace.”

General Sessions wrote that memorandum reflecting on guidelines issued by the Clinton Administration in 1997 in the wake of the bipartisan adoption of the Religious Freedom Restoration Act. Those guidelines also provided strong religious liberty protection in the federal workplace; the new Trump guidelines expand, reinforce, and clarify the Clinton standards. But that the Clinton Administration could issue good guidance on such a subject, having come off signing RFRA into law, recalls a halcyon day when broad religious liberty protections had substantial bipartisan support. The battle over same-sex marriage has largely destroyed that bipartisan consensus. We must hope it may yet come back.