Trump DOJ and HHS Issue Major Religious Liberty, Pro-Life Protections

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This column by ACRU General Counsel Ken Klukowski was published October 6, 2017 by Breitbart.

WASHINGTON —- President Donald Trump’s administration kept a major campaign promise on Friday, implementing his Executive Order 13798 by issuing key protections for religious liberty, as well as protecting the unborn.

President Trump signed Executive Order 13798 on May 4 to declare the policy of the United States government regarding religious liberty under the U.S. Constitution and federal law, the first such order in American history.

The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government,” the executive order says in Section 1.

Going on to explain that the Constitution’s First Amendment enshrines fundamental rights to religious liberty, Section 1 continues, “Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.”

Later in the document, Section 4 of that executive order provides, “In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”

Attorney General Jeff Sessions acted Friday upon Section 4’s mandate, issuing guidance that declares 20 separate protections under federal law. They include:

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

The attorney general’s memorandum includes protections under the Religious Freedom Restoration Act (RFRA), including (#14) how demanding its legal standard is in protecting religious liberty, (#12) that it does not allow the federal government “to second-guess the reasonableness of a religious belief,” and (#13) RFRA is violated when the government “substantially pressures” a religious person or group “to modify such observance or practice.”

Sessions also clarifies religious protections under Title VII in federal law governing employers, regarding (#16) not discriminating against employees on the basis of religion, including (#17) religious observance and practice. Additionally, (#19) religious employers have the right to hire only individuals who agree with that religious faith, and (#20) the federal government may not require an organization to set aside any of its religious-liberty rights as a condition for getting any grant or benefit.

Each of these guidance provisions is accompanied by a full-paragraph explanation, and the full memorandum is accompanied by a 17-page appendix providing additional details.

The attorney general will also issue a memorandum to all divisions and offices within the U.S. Department of Justice on how to implement and enforce these religious-liberty protections.

Also on Friday, the U.S. Department of Health and Human Services issued pro-life protections authorized by Section 3 of the executive order to repeal the “abortion mandate” in Obamacare, as Breitbart News is reporting in detail.

Friday’s actions do not foreclose the option that the attorney general can issue additional guidance as appropriate in the future.

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