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In its first year, the Trump administration has systematically redefined and expanded the right to religious exemptions, creating broad carve-outs to a host of vital health, labor, and anti-discrimination protections. On May 4, 2017—the National Day of Prayer—during a ceremony outside the White House, President Donald Trump signed an executive order on “Promoting Free Speech and Religious Liberty.” At the time, the executive order was reported to be a “major triumph” for Vice President Mike Pence, who, as governor of Indiana, famously signed a religious exemption law that would have opened the door to anti-LGBTQ discrimination.¹ Among its other directives, the order instructed Attorney General Jeff Sessions to “issue guidance interpreting religious liberty protections in Federal law.”² The guidance on “Federal Law Protections for Religious Liberty,” which Sessions subsequently issued in October 2017, purports to clarify existing religious liberty protections.³ However, in practice, it expands those provisions to improperly elevate the right to religious exemptions above other legal and constitutional rights and to shield those who would seek to use federal dollars while denying necessary services to and discriminating against LGBTQ people, women, and religious minorities.

Federal agencies are already relying on Sessions’ guidance to broaden exemptions related to essential health services, including sexual and reproductive health care. In January 2018, the Department of Health and Human Services (HHS) announced the creation of a Conscience and Religious Freedom Division in the Office for Civil Rights as well as the publication of a proposed rule that would radically redefine and expand existing religious exemptions under the law. Among its other provisions, the rule would expand the right of health care providers to deny patients necessary care related to abortion and sterilization.⁴ In October 2017, HHS published a rule allowing virtually any employer that objects to contraception on moral or religious grounds to apply for an exemption to the Affordable Care Act’s mandate that employers provide contraceptive coverage in their health insurance plans.⁵ Both measures referenced Sessions’ October 2017 guidance as part of the department’s rationale for promulgating these rules.

Religious liberty is a foundational American value. Both the right to practice one’s faith and the right to live free of a government-established religion are enshrined in the First Amendment to the Constitution. Both these rights are also very popular: Eighty-eight percent of Americans agree that religious liberty is a founding principle afforded to everyone in the United States, and almost two-thirds want to see that strong church-state separation is maintained.⁶

Throughout history, legislatures and the courts have worked to more clearly define and more robustly protect religious liberty for all Americans. While critical and widely embraced, the religious freedoms protected in the First Amendment are not unlimited. Much like all constitutionally protected rights, they must be balanced in an ongoing assessment of the needs and rights of a dynamic and pluralistic American landscape. For example, a common theme in First Amendment law has involved an understanding that religious liberty has a natural boundary where it causes harm to third parties.⁷

In 1993, communities of faith, civil rights advocates, and politicians along the ideological spectrum celebrated the passage of the bipartisan federal Religious Freedom Restoration Act (RFRA). RFRA prohibits the government from substantially burdening the exercise of religion unless doing so is the least restrictive means to further a compelling government interest. However, despite initial widespread support for RFRA, this strict test has since led to numerous attempts to go beyond RFRA’s initial intent and use religious exemptions to override the rights of others.⁸

In the decades following RFRA’s passage, conservatives have worked to use religious liberty claims to advance anti-equality political and legislative aims—particularly regarding issues of sex, marriage, and reproductive rights. This movement met with success in the 2014 Supreme Court decision in Burwell v. Hobby Lobby, which marked a dramatic change in the legal landscape of religious freedom.⁹ In its opinion, the court granted Hobby Lobby—a closely held, for-profit company—the same religious exemption available to faith-based nonprofits under the Affordable Care Act (ACA): the ability to opt out of providing employees comprehensive insurance coverage, including no-cost contraception under the ACA’s contraception mandate. The court’s decision upset the previously shared understanding of who is eligible for RFRA protections, what constitutes a substantial burden on religious exercise, and what constitutes the least restrictive means of furthering a compelling government interest.¹⁰

Since inauguration, the Trump administration has tried to build on the Hobby Lobby decision in order to distort religious liberty protections so that they advance only the rights of a narrow segment of the faith community—namely, conservative Christians—and create a license to discriminate against LGBTQ people, women, religious minorities, and nonreligious people.¹¹ The administration’s policies have established a pattern of protecting the religious liberty of only this small segment of Americans. The Muslim ban; abandonment of employment protections for LGBTQ workers; commitments to further expand religious exemptions for employers who object to their employees accessing no-cost contraception; and other discriminatory acts have all prioritized the rights of the older minority of white evangelical Christians who share a conservative view of sex and sexuality and a narrow, exclusive definition of marriage and family. Yet the administration has failed to acknowledge that many people of faith hold a wide variety of views regarding these issues.¹²

This report discusses how the Department of Justice’s guidance opens the door to an extreme rewriting of the concept of religious liberty. The guidance—and the numerous agency rules, enforcement actions, and policies that it is influencing—will shift the balance of individual religious protections across the federal government toward a new framing that allows religious beliefs to be used as a weapon against minority groups.

The executive order directing Attorney General Sessions to promulgate guidance on religious exemptions was a troubling development. Throughout his career, Sessions has espoused a flawed interpretation of religious liberty that flouts the separation of church and state and favors specific conservative, evangelical Christian beliefs. For example, while he supports enacting special free exercise protections for those with anti-LGBTQ and anti-choice religious beliefs, Sessions has championed Islamophobic government policies and rhetoric.¹³ These concerns were borne out when Sessions issued religious liberty guidance that contained significant legal and constitutional problems.

While a few of these principles merely restate general and widely accepted principles of religious liberty law, others significantly expand upon or misinterpret Supreme Court precedent and statutory religious liberty protections. By elevating Sessions’ beliefs on religious exemptions to the same level as established precedent, these provisions provide legal cover for individuals and government agencies to ignore a host of laws and policies; moreover, they are likely to create tangible harm in various marginalized communities.

Both the president’s executive order and the attorney general’s guidance are salient examples of a solution in search of a problem. Existing constitutional and statutory religious liberty protections for all are robust, comprehensive, and vigorously enforced—the fruits of which can be seen in the thriving, pluralistic religious communities in the United States. Attorney General Sessions has stated that religion in the United States is under attack; however, he offers no evidence for this proposition besides citing a law professor’s blog post that encourages judges to “take aggressively liberal positions.”¹⁴ The First Amendment’s guarantee of the free exercise of religion, the federal RFRA, and literally hundreds of federal regulatory measures provide more than adequate protection for the free exercise of religion in the United States. Additionally, the Supreme Court maintains a docket that includes significant religious liberty cases each term and has not been hesitant to enforce constitutional and statutory free exercise rights when it finds that those rights have been abridged.¹⁵ The administration has not made the case that existing protections for religious liberty have weaknesses that merit stronger federal measures. The extremism of the president and attorney general’s embrace of religious exemptions—particularly given the strength of existing protections thereof—risk compromising establishment clause protections by directing agencies to pre-emptively provide exemptions to broadly applicable rules. As the Supreme Court noted in Corporation of the Presiding Bishop v. Amos, at some point, accommodation may devolve into “an unlawful fostering of religion.”¹⁶

The guidelines issued by Jeff Sessions’ Department of Justice (DOJ) contain significant exaggerations and misinterpretations of religious liberty under the Constitution and federal law. The guidance overstates the right to religious exemptions under the First Amendment and RFRA, demanding that agencies provide exemptions that are not required under current law and that may be prohibited by the establishment clause of the First Amendment. Several of the memo’s most significant overstatements are outlined below:

• The establishment clause: The guidance repeatedly understates the limits on religious exemptions imposed by the establishment clause. For example, the guidance’s broad statement that “individuals and organizations do not give up their religious-liberty protections by … receiving government grants or contracts” misleadingly ignores establishment clause restrictions that prohibit faith-based organizations from placing religious restrictions on the use of government funds and even limit some optional religious activities within grant programs.¹⁷
• RFRA and corporations: The guidance states that RFRA protects the exercise of religion by “ ‘corporations, companies, associations, firms, partnerships, societies, and joint stock companies,’ 1 U.S.C. § 1, including for-profit, closely-held corporations like those involved in Hobby Lobby, 134 S. Ct. at 2768.”¹⁸ The Supreme Court’s holding in Hobby Lobby, however, was far narrower, finding only that the law applied to closely held corporations.
• Religious employers: The guidance overstates the existing religious exemption within Title VII of the Civil Rights Act of 1964, which permits religious employers to prefer coreligionists in hiring. The DOJ guidance states that such religious organizations are “entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.”¹⁹ While Title VII permits religious organizations to hire employees that share their religion, neither the statute nor subsequent case law allows religious employers to require the conduct of employees to be consistent with the employer’s religion in a way that violates Title VII’s sex discrimination prohibition.²⁰ For example, religious employers are not permitted to fire someone for conduct that is inconsistent with their faith if it is otherwise protected under Title VII—such as only firing female employees for getting pregnant outside of marriage.
• RFRA compelling interests: The guidance states, “An asserted compelling interest in denying an accommodation [under RFRA] to a particular claimant is undermined by evidence that exemptions or accommodations have been granted for other interests.”²¹ This is an exaggeration of nonbinding language, or dicta, from the justices in Hobby Lobby, as the majority opinion assumed that the government had a compelling interest in the contraceptive mandate, and five justices explicitly held that the government’s interest was compelling.²² In fact, the opinion stated that it was “unnecessary to adjudicate” the question of when and whether an existing exemption undermines an asserted compelling interest.²³
• Requirement to create a new government program: The guidance claims that the RFRA analysis “requires the government to show that it cannot accommodate the religious adherent while achieving its interest through a viable alternative, which may include, in certain circumstances … creation of a new program.”²⁴ This, again, is taken from Hobby Lobby dicta that conflict with the opinion of not only the four dissenters in that case but with Supreme Court Justice Anthony Kennedy’s concurrence, which stated:

In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program … The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government.²⁵

• Eligibility for government funding: The DOJ guidance broadly states that “Government may not exclude religious organizations as such from secular aid programs, at least when the aid is not being used for explicitly religious activities such as worship or proselytization.”²⁶ The most recent case on this issue, however—Trinity Lutheran Church v. Comer—is ambiguous as to when the government can and cannot exclude religious organizations from funding. In a crucial but vague footnote, that opinion states, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”²⁷

By expanding the types of companies that can bring RFRA claims, limiting what may be considered a “compelling interest,” stating that narrow tailoring may require the creation of a new government program, broadening the religious exemption of Title VII, and understating the limits of the establishment clause, the DOJ guidance attempts to dramatically expand the right to religious exemptions under federal law. At the same time, it pays little consideration to the impact that such exemptions will have on the enforcement of health, safety, labor, and anti-discrimination laws, or on the communities who depend on these laws. While RFRA and other exemptions already robustly protect religious observers, the guidance seeks to further elevate the right to exemptions above a host of other liberty and equality rights. Even more troubling, the agencies that will be issuing exemptions under the DOJ guidance are largely led by officials who have openly favored conservative religious views about sex and marriage over a larger concern for religious diversity and plurality.

An analysis by the Center for American Progress identified at least 87 regulations, 16 agency guidance documents, and 55 federal programs and services that Attorney General Sessions’ guidance could undermine.²⁸ Most of these regulations and guidance documents were created by the Obama administration in order to advance LGBTQ equality and ensure that federally funded programs do not discriminate. This research shows that the guidance will likely have far-reaching negative effects on people across the country, particularly because the DOJ will review a wide variety of proposed regulations—including those that implement civil rights laws—for compliance, and it will alert other agencies when they might be in conflict with the guidance.²⁹ Given Sessions’ and the administration’s record on LGBTQ rights, reproductive health, and religious minorities, this guidance, at best, may produce a severe chilling effect on promoting or enforcing protections for LGBTQ people, women, and minority communities. At worst, it could bring about new, explicit exemptions that expressly undermine civil rights.

DOJ guidance establishes a broad license to discriminate

The U.S. Constitution as well as federal, state, and local law contains numerous provisions to ensure that religious freedom thrives, providing a shield for individual beliefs and practices. The DOJ guidance, however, seems to interpret almost any government action to be a substantial burden on religious exercise—while minimizing any compelling government interest to the contrary—and allows religious liberty to be used as a sword to infringe on the rights of others. Examples from the recent past, such as Hobby Lobby, show that there have been efforts to reinterpret “religious exercise” beyond an individual’s own actions—for instance, wearing religious garb or abstaining from work on Sabbath—to include any connection, however tenuous, with activities that the individual opposes, such as paying for insurance that might be used to obtain contraception. In other words, under the guidance, individuals and corporations will be able to point to almost any law or regulation and claim that it has burdened their religious freedom. This broad interpretation opens the door to exempt individuals and corporations from following any law they do not like. For example, employers may try—as Harris Funeral Homes has—to demand that their transgender employees dress according to their sex assigned at birth, claiming that following Title VII’s protections against sex discrimination would be a substantial burden on their beliefs about gender;³⁰ that argument has already failed in the 6th U.S. Circuit Court of Appeals.³¹

The DOJ guidance unnecessarily emphasizes RFRA and asserts that many government interests, such as the prevention of discrimination, would not be found compelling enough to take precedence over religious beliefs “except in the narrowest circumstances.”³² This is a shocking statement by a government agency that is charged with the enforcement of federal civil rights laws. It creates a default in favor of religious exemptions, which will upset the careful balance that has been honed for centuries between religious freedom and other civil rights.

The guidance encourages federal agencies to give an unprecedented amount of deference to the religious beliefs of federal employees, contractors, and grantees. It also attempts to minimize third-party harm as a consideration when weighing religious objections against other protected rights, relying on a nonbinding footnote in Hobby Lobby while going beyond the Supreme Court’s actual holding. The Supreme Court has repeatedly held that religious freedom should not be interpreted to allow for the infliction of harm on others.³³ It has invalidated religious exemptions that would have imposed “significant burdens” on third parties, noting that “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”³⁴ unjustifiable awards of assistance to religious organizations’ and cannot but ‘conve[y] a message of endorsement’ to slighted members of the community.” Citing Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 348 (1987); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985).] While the Hobby Lobby footnote argues that some religious exemptions that harm third parties may be permissible, the court was careful to note that it believed the impact of an accommodation on women employed by Hobby Lobby would be “precisely zero.”³⁵ The guidance from the Department of Justice elevates a footnote in Hobby Lobby rather than the actual ruling, permitting harm to third parties in favor of individual religious practices.

The guidance puts vulnerable populations at risk

These expansive interpretations will likely lead to major regulatory changes, as agencies bring themselves into compliance and create broad exemptions that enable noncompliance with anti-discrimination and other laws. For example, by allowing individuals and companies to ignore nondiscrimination protections because of a religious objection to equal treatment for certain populations, the guidance would essentially gut these protections and render them largely ineffective, shifting the balance in favor of those who object to them on religious grounds.

Of particular concern is the impact that the guidance may have on contractors and grantees. The guidance document states that “government contracts, grants, and other programs” are entitled to religious “protections.”³⁶ With hundreds of billions of dollars going to contractors and grantees every year, expanding religious exemptions for these organizations could have far-reaching effects on the employees who work for federal contractors, the communities served by federal grantees, and the taxpayers who fund these programs. More than half of the U.S. population still lives in a state with no employment nondiscrimination laws covering sexual orientation and gender identity.³⁷ Calculations using USASpending.gov’s searchable database indicate that, in fiscal year 2016, approximately $615 billion in federal contracts, grants, loans, and other financial assistance was allocated to the 30 states without comprehensive LGBT nondiscrimination protections on the books—places where LGBTQ people are especially vulnerable to discrimination.³⁸ Despite existing protections, employees working for federal contractors in those states may now be even more vulnerable. Thanks to an executive order signed by former President Barack Obama, all federal contractors and subcontractors with contracts over $10,000 are barred from discriminating on the basis of sexual orientation and gender identity.³⁹ The contractor executive order, which was signed in 2014, was the single largest expansion of LGBTQ workplace protections in U.S. history.⁴⁰ Federal contractors employ nearly 30 million individuals—or about one-fifth of all U.S. civilian employees—who, with the implementation of the DOJ guidance, may be vulnerable to discrimination.⁴¹

In addition to potentially permitting employee discrimination by federal contractors, the DOJ guidance may allow providers to lock LGBTQ people out of many federally funded programs and services. Billions of taxpayer dollars fund organizations that provide critical services like health care, shelter, and assistance for victims of violence. Table 1 provides examples of programs that have sex-, sexual orientation- and gender identity-inclusive nondiscrimination rules in order to ensure grantees do not deny services to LGBTQ people. The DOJ guidance could permit a contractor or grantee to assert a religious belief in order to refuse services under these programs without risking the loss of federal funding. For example, LGBTQ survivors of interpersonal violence could be turned away from federally funded domestic violence shelters; health clinics around the world that are funded by the U.S. Agency for International Development could refuse to treat LGBTQ people; a landlord who receives federal funding could refuse to rent an apartment to a same-sex couple or a transgender person. And beyond service refusals, the guidance could be relied upon by federal agencies to sanction mistreatment of, for example, LGBTQ youth in residential programs; for instance, one residential placement facility in Michigan forced LGBTQ teens to wear orange jumpsuits in order to “warn” the other residents of their identity.⁴² In another example, under the guise of mental health care, faith-based organizations contracting with HHS could force any unaccompanied LGBTQ immigrant children in their care into conversion therapy.

The programs listed in Table 1 are just a few examples of the more than 50 taxpayer-funded programs and services CAP identified that could be permitted to refuse service to LGBTQ people and women under the DOJ guidance.

The guidance has already been used by government grantees to expand religious exemptions around the provision of reproductive health services. Currently, government entiti