New Religious Liberty Guidance Issued by Justice Department: What are the Ramifications for Colleges?

On October 6th, Attorney General Jeff Sessions published guidance issued to all federal administrative agencies and departments interpreting religious liberty protections under federal law.  The memorandum, delivered pursuant to President Trump’s Executive Order in May, interprets existing protections of religious liberty and identifies twenty high-level principles that federal departments and agencies can put into practice to ensure religious freedoms are protected.

Stating that “to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity,” the memorandum lists the twenty principles that it views as paramount to the protection of religious liberty.  The principles begin stating that the freedom of religion is a fundamental right, to act or abstain, held by persons and organizations, that is not shed when participating in a marketplace, public square, or interacting with the government.  In addition, government may not favor or disfavor religious groups and may not interfere with the autonomy of religious organizations.  The memo incorporates the protections of the Religious Freedom and Restoration Act of 1993 and Title VII of the Civil Rights Act of 1964.  Included by the DOJ is a recognition of religious employers’ entitlement to employ only persons who beliefs and conduct are consistent with the employers’ religious beliefs.  Finally, the memo recognizes that a religious organization is entitled to compete on equal footing for federal financial assistance and that the federal government may not require that the religious character of the organization be altered, in any way, to participate in the government program.

In addition, AG Sessions also released an Implementation Memo directing the DOJ to incorporate the interpretative guidance in “litigation strategy and arguments” and “all other aspects of the Department’s work.”  The second memo directs the DOJ’s Office of Legal Policy to review “every Department rulemaking and every agency action” for review under the guidance.  In addition, Attorney’s General are instructed to notify the Department of litigation, operations, and grants that raise novel and material religious liberty issues.

At this point, the Department of Education has not responded to this memo.  It is safe to assume, for the time being, that the Dear College Letter (Sept. 14, 2004) on religious discrimination is still in effect, but changes could be down the road, including a Department of Education implementation memo similar to the one issue by the DOJ.

Even without the implementation memo, there are some indications of how the Trump Administration will look at religious freedom issues on campus and what their approach will be.  Mentioned in an earlier blog post a couple weeks ago, the DOJ filed a Statement of Interest (SOI) in the Northern District of Georgia case, Uzuegbunam v. Preczewski. (See previous blog here.)  The plaintiff in that case, a student at Georgia Gwinnett College, a public institution, sued the school for limiting his evangelizing on campus to two small free speech zones, which he claims encompasses 0.0015% of the college’s campus.  When he requested approval to preach, the college informed him that its “disorderly conduct policy” forbid anyone from engaging in “fire and brimstone” speech.  The student sued the college for violating his First and Fourteenth Amendment rights.

The case marries AG Sessions two priorities of the past couple weeks, campus free speech and religious liberty, (See our blog post on the former issue here) and signals DOJ’s renewed attention to this issue.  Clearly, AG Sessions has taken a keen interest in religious freedom issues, but whether the SOI means heightened scrutiny for religious freedom issues on campus is yet to be seen, but early indications make additional DOJ attention likely.  HMBR will continue to monitor these developments as they happen on this issue and will inform you when new information comes available.