The Department of Justice (DOJ) sent a memorandum to federal departments and agencies with updated guidance on religious liberty and parental rights protections, based on recent U.S. Supreme Court precedent.
The update, issued July 23, is the first revision to the guidance since 2017. It incorporates Supreme Court rulings issued after the earlier guidance, including rulings on church autonomy, equal access for religious entities to grants and government programs, and the right for parents to direct the religious upbringing of their children.
"Religious liberty is not merely a right to personal religious beliefs or even to worship in a particular place," the memorandum, sent by the attorney general's office, states. "It also encompasses religious observance and practice as displayed in a person's daily life."
"Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law," it says. "Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated."
The guidance expands the DOJ interpretation of church autonomy for hiring and firing practices. Current statutes already give religious employers discretion to base employment decisions on a person's adherence to the entity's religious faith under Title VIII exemption.
The update adds: "Even in the absence of the Title VII exemption, both RFRA [the Religious Freedom Restoration Act] and the principle of church autonomy under the Religion Clauses of the Constitution protect religious employers' authority to make employment decisions consistent with their religious mission."
Under the guidance, religious entities must have the opportunity to compete for government grants and contracts "on an equal basis with nonreligious organizations." Government entities cannot force a religious organization "to choose between curtailing their government-funded mission and taking actions inconsistent with their religious beliefs" as a condition of a grant or contract.
This extends to school choice programs, stating religious schools "with curricula and activities that include religious elements" have the same right to participate in vouchers.
The guidance also explains that RFRA's prohibition on burdening a person's religious practice is not limited to individuals, citing the Supreme Court decision that allowed Hobby Lobby to refuse to cover abortifacient drugs in its insurance plans.
"RFRA protects the exercise of religion by individuals and by corporations, companies, associations, firms, partnerships, societies, and joint stock companies," it states.
"Constitutional protections for religious liberty are not conditioned upon the willingness of a religious person or organization to remain separate from civil society," the guidance states.
"Although the application of the relevant protections may differ depending on the context, individuals and organizations do not give up their religious-liberty protections by providing or receiving social services, education, or healthcare; by earning or seeking to earn a living; by employing others to do the same; by receiving government grants or contracts; or by otherwise interacting with the federal government or with state or local governments," it states.
Employers, the guidance notes, must also provide accommodations for employees to ensure employment does not interfere with religious practice "unless the employer cannot reasonably accommodate such observance or practice without incurring substantial hardship."
The guidance further prohibits government interference in parental rights to direct the religious upbringing of their children, stating: "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," it adds. "Government may not choose to condition the availability of public benefits, such as public schooling, upon parents' willingness to surrender their religious freedom."
Updated guidance includes instructions for departments and agencies to proactively consider potential burdens on religious exercise and possible accommodations during the rulemaking process. DOJ instructs them to develop a process for reviewing rules with this in mind and recommends consultation with the White House Faith Office.
The DOJ's Office of Legal Policy will review potential rules for compliance. Agencies are asked to consider and respond to religious liberty objections to proposed rules that are raised during the public comment period.
Some of the guidance is also designed to protect the religious liberty of federal workers. It states federal employees can keep religious materials on their desks, can discuss religious topics, and can display religious clothing.
