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Attorney general alludes to new religious freedom guidelines in private speech

Posted July 24

It's been nearly three months since President Donald Trump issued his executive order on religious freedom and faced criticism from some religious conservatives for its limited scope.

"The religious liberty executive order is meaningless. No substantive protections for conscience. A betrayal," Robert George, a professor of law and politics at Princeton University, tweeted at the time.

The order, signed on May 4, promised to ease restrictions on churches' political activism and prevent religiously affiliated organizations that oppose birth control from being forced to provide contraceptive coverage in employee health plans. Many observers described it as neutralizing threats that were no longer a big deal.

"This order appears to be largely a symbolic act, voicing concern for religious liberty but offering nothing to advance it," said Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty in a statement.

However, most critiques overlooked what may become the most powerful part of the order: its call-to-action for Attorney General Jeff Sessions.

Trump instructed Sessions to analyze federal agencies' relationship to religious freedom law, exploring whether government officials need to do more to protect people of faith.

"No Americans should be forced to choose between the dictates of the federal government and the tenets of their faith," Trump said as he signed the order, according to the Deseret News.

Sessions announced last week that the order prompted the Department of Justice to review the work of federal agencies and prepare new religious-freedom related guidance, which will be issued in the near future.

The guidance will "help agencies follow the Religious Freedom Restoration Act," he said in a private, prepared speech at a religious liberty summit on July 11. "Congress enacted RFRA so that, if the federal government imposes a burden on somebody's religious practice, it had better have a compelling reason. That is a demanding standard, and it's the law of the land."

His remarks were initially off-the-record, but the text of his speech was obtained and published by The Federalist on July 13.

Agencies are already required to abide by the Religious Freedom Restoration Act, which was passed nearly unanimously by Congress in 1993. The legislation states that federal policy cannot "substantially burden" the free exercise of religion unless there is a "compelling government interest" and no less-restrictive alternative.

Federal agencies take note of faith-based objections to their policies and look for opportunities to compromise. For example, religiously affiliated organizations are allowed to participate in federal funding programs so long as the services they provide with the money aren't religious in nature.

But some religious conservatives have advocated for broader exemptions from government regulations and policies that conflict with their faith, especially in the wake of the legalization of same-sex marriage in June 2015. They want to ensure that religious adoption agencies can still access federal funds and that federal employees won't be penalized even if they refuse service to same-sex couples.

Sessions addressed these concerns in his remarks, affirming the Trump administration's commitment to people of faith.

"The challenges our nation faces today concerning our historic First Amendment right to 'free exercise' of our faith have become acute. I believe that this recent election was significantly impacted by this concern and that this motivated many voters. President Trump made a promise that was heard," he said.

His speech outraged LGBT rights advocates, who said the forthcoming guidance for federal agencies will likely give government officials a "license to discriminate," NBC News reported.

"Sessions' alarming comments proved what LGBTQ and civil rights leaders know to be true — that he cannot be trusted," said JoDee Winterhof, senior vice president for policy and political affairs at the Human Rights Campaign, to NBC News.

On Thursday, the American Civil Liberties Union filed a Freedom of Information Act lawsuit for documents related to the religious freedom executive order, fighting for access to communications related to the Department of Justice's upcoming guidance, among other items.

"Now that the administration has taken its first steps to use religious exemptions to pave the way for discrimination, the American people deserve clarity and transparency on what is coming next," said Louise Melling, the ACLU's deputy legal director, in a statement.

Perhaps anticipating a backlash, Sessions spent much of his speech describing the important role religious freedom law has played throughout American history, promising to combat a growing culture of secularism.

"This administration, and the upcoming guidance, will be animated by that same American view that has led us for 241 years: that every American has a right to believe, worship and exercise their faith in the public square," he said.

The Justice Department has yet to offer further comment on the guidance, according to NBC News.

Email: kdallas@deseretnews.com Twitter: @kelsey_dallas

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