The Center for American Progress

Religious Liberty Should Do No Harm

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People take part in a candlelight vigil at the Washington National Cathedral in Washington, D.C., in March 2018.

  • OVERVIEW Policymakers should ensure that religious liberty extends to all Americans—and that it is not misused as a license to discriminate.
Introduction and summary

Twenty-five years ago, the federal Religious Freedom Restoration Act (RFRA) was signed into law to clarify and expand upon the right to religious liberty. RFRA outlines that the government “should not substantially burden religious exercise without compelling justification” and that it should only do so if it furthers a compelling governmental interest in the least restrictive way possible. The purpose of this law is “to protect the free exercise of religion” while clearly defining and more robustly protecting the right of religious liberty for all Americans. It passed with widespread, bipartisan support and triumphed among faith communities, civil rights advocates, and politicians alike. Since the passing of the federal RFRA, 21 states have mirrored the federal statute to adopt similar legislation.

In 2014, however, the U.S. Supreme Court decision in Burwell v. Hobby Lobby marked a major shift in the interpretation of religious exemptions from religiously neutral laws. Rather than simply protecting the rights of religious people, RFRA was expanded and misused to discriminate. By treating two for-profit corporations—craft chain Hobby Lobby and furniture-maker Conestoga Wood Specialties—like individuals with the right to free exercise of religion, the ruling allowed the religious beliefs of the company owners to override those of their employees, rescinding employees’ access to no-cost contraceptive health coverage to which they are entitled under federal law. The ruling affected thousands of employees, and it expanded the use of religious exemptions by redefining the scope of federal RFRA protections to include for-profit corporations. The legacy of the Hobby Lobby decision has continued under the Trump administration as religious liberty is misused to discriminate against vulnerable communities, such as religious minorities, nonreligious people, people of color, women, and the LGBTQ community.

The United States was founded on the principle of religious liberty—a principle that is now under threat. At the nation’s outset, lawmakers established a unique society without a government-established religion, which is cemented in the First Amendment to the Constitution, and sanctioned rights for religious people. They also protected the rights of religious institutions and ensured that all Americans could express a diverse range of beliefs without interference from the government. In recent years, however, the right to religious liberty has increasingly been exploited and misused in order to favor the interests of select, privileged conservative Protestant Christians over the basic rights of the most vulnerable Americans.

The principle of religious liberty should extend to all people, not only ones who come from a specific set of religious beliefs. A 2014 study from the Pew Research Center reveals that the religious landscape in the United States is changing. As the Christian population is declining—particularly among mainline Protestants and Catholics—the number of adults who do not identify with a specific religion is growing. With the changing demographics of Americans and their religious connections, it is even more important that people of all faiths and people of no faith are granted the fundamental right to religious liberty.

Protecting religious liberty continues to be a priority for a majority of Americans: Almost two-thirds believe that there should be a “strict separation” between church and state, and nine out of 10 agree that the United States was founded with universal religious freedom that extends to people of all religions. Policymakers have an opportunity and a responsibility to enact policies that will ensure the right of religious liberty for all Americans without infringing on the rights and religious freedoms of others. This report provides a menu of administrative and legislative options at the federal, state, and local levels to ensure that the right to religious liberty extends to all Americans—not solely those with the loudest voices, most power, or strongest political connections. In America—a country that has codified the necessity of freedom of religion for all—religious liberty policies should reflect the moral values of equality, inclusion, and freedom for all to live without fear of discrimination.

The Trump administration’s widespread reinterpretation of the law

Though the U.S. Supreme Court has long recognized that religious freedom should not be interpreted to permit harm to others, the Trump administration has redefined the extent of religious liberty protections, establishing a broad license to discriminate. Former Attorney General Jeff Sessions’s guidance on “Federal Law Protections for Religious Liberty”—which he claimed would clarify the existing protections regarding religious liberty—serves as the groundwork for writing discriminatory actions into law. The guidance prioritizes religious exemptions over all other rights, and it defines the constitutional and statutory protections of religious liberty broadly so that they can be widely implemented. For example, a previous analysis by the Center for American Progress found at least 87 regulations, 16 agency guidance documents, and 55 federal programs and services that the guidance could undermine—most of which the Obama administration created to advance LGBTQ equality and prohibit federally funded programs from discriminating, including on the basis of religion. The guidance establishes an overarching license to discriminate against the federal government. Moreover, it puts vulnerable populations at risk of being denied equal treatment under the law.

Since the announcement of the guidance on May 4, 2017—the National Day of Prayer—the Trump administration has continued to use religious liberty to justify discrimination. In July 2018, former Attorney General Sessions announced the creation of a Religious Liberty Task Force, which, according to Sessions, will ensure that “all Justice Department components are upholding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations.” The purpose of the task force is to enforce the 2017 religious liberty guidance from the U.S. Department of Justice, yet such enforcement could promote a license to discriminate on the basis of religious liberty. These and similar initiatives erode the original intent of religious liberty—ironically, in the name of religious liberty—in order to validate discrimination against the most vulnerable communities.

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