Religious Freedom v. The U.S. Attorneys’ General

February 9, 2018 – I think it is wonderful how the current administration ignores the First Amendment’s Establishment Clause to give rise to their Christian theocracy.

Image resultLast year the administration instructed the Department of Justice and Attorney General Jeff Sessions to give special protections to religious organizations by initiating their “Respect for Religious Liberty” functions for the offices of the Attorney General. The purpose of the new rule (1-15.000) is simple:

To the greatest extent practicable and permitted by law, Department components and United States Attorneys’ Offices must reasonably accommodate religious observance and practice in all activities, including litigation. (1-15.100)

This means to give religion an upper hand in any litigation involving the federal courts and government.

The notice continues that each litigation office is to assign either the Civil Chief or designee “to coordinate religious liberty litigation issues and to implement this section.” (1-15.200)

There are 20 principles that the Deputy AGs must follow when contending with religious liberty litigation (1-15.300):

Principles of Religious Liberty

1)  The freedom of religion is a fundamental right of paramount importance, expressly protected by federal law.

2)  The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.

3)  The freedom of religion extends to persons and organizations.

4)  Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government.

5)  Government may not restrict acts or abstentions because of the beliefs they display.

6)  Government may not target religious individuals or entities for special disabilities based on their religion.

7)  Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.

8)  Government may not officially favor or disfavor particular religious groups.

9)  Government may not interfere with the autonomy of a religious organization.

10) The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the federal government from substantially burdening any aspect of religious observance or practice, unless imposition of that burden on a particular religious adherent satisfies strict scrutiny.

11) RFRA’s protection extends not just to individuals, but also to organizations,  associations, and at least some for-profit corporations.

12) RFRA does not permit the federal government to second-guess the reasonableness of a religious belief.

13) A governmental action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.

14) The strict scrutiny standard applicable to RFRA is exceptionally demanding.

15) RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties.

16) Title VII of the Civil Rights Act of 1964, as amended, prohibits covered employers from discriminating against individuals on the basis of their religion.

17) Title VII’s protection extends to discrimination on the basis of religious observance or practice as well as belief, unless the employer cannot reasonably accommodate such observance or practice without undue hardship on the business.

18) The Clinton Guidelines on Religious Exercise and Religious Expression in the Federal Workplace provide useful examples for private employers of reasonable accommodations for religious observance and practice in the workplace.

19) Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.

20) As a general matter, the federal government may not condition receipt of a federal grant or contract on the effective relinquishment of a religious organization’s hiring exemptions or attributes of its religious character.

Each of these principles has a lengthy explanation, but all in all appear to cater to the Christian majority. However, such rules can also backfire on the government, such as the Mary Doe v. (Gov.) Eric Greitens, et al, as it concerns a Missouri abortion law.

In 2015, Doe became pregnant and sought to have an abortion at the Planned Parenthood Clinic in St, Louis. Missouri law requires a 72 hour waiting period, an ultrasound showing the fetus, the viewing of a video and pamphlet declaring that life begins at conception.

In the court case, Doe, a member of the Satanic Temple, alleged that “the state’s requirement that Planned Parenthood — the only abortion provider in the state — distribute a booklet from the state’s Department of Health and Senior Services that stipulates that life begins at conception violates her beliefs as a member of the Satanic Temple.”

These provisions violated Doe’s belief in science and she provided the doctors a letter stating that she “has deeply held religious beliefs that a non-viable fetus is not a separate human being but is part of her body and that abortion of a non-viable fetus does not terminate the life of a separate, unique, living human being.”

During the proceedings, “Missouri Solicitor General D. John Sauer declared ultrasounds are not required to obtain an abortion in Missouri…,” one of the provisions of the law that Doe and the Temple were fighting. This admission by the Solicitor General’s office was seen as a victory by Doe, her lawyers and the Temple.

If this case were to proceed to the federal level, how would the Deputy Attorney General handle the case? Would the AG’s office back Doe’s claim of religious freedom, or will they back the state’s abortion provisions which are also religiously based? In either case, Doe’s lawsuit shows how such regulations and functions can backfire on the very religious zealotry as seen in the new rules.

It seems that the current administration is going out of its way to accommodate the conservative evangelical Christians, who make up the majority of President Trump’s base, to create an American theocracy. It must be seen by the secular community as an attack on the Constitution and the First Amendment’s Establishment and Free Exercise clauses.

About David Rosman

David is the winner of the Missouri Press Foundation's "Best Columnist" in 2013 (First Place) and 2014 (Second Place). He is the winner of the 2016 Harold Riback Award for excellence in writing. He is also an editor and award-winning speaker. His book, "A Christian Nation? An examination of Christian nation theories and proofs" is available on Amazon, com as a paperback and eBook.
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