[Federal Register Volume 82, Number 206 (Thursday, October 26, 2017)]
[Notices]
[Pages 49668-49680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23269]
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DEPARTMENT OF JUSTICE
[OLP Docket No. 165]
Federal Law Protections for Religious Liberty
AGENCY: Department of Justice.
ACTION: Notice.
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SUMMARY: This notice provides the text of the Attorney General's
Memorandum of October 6, 2017, for all executive departments and
agencies entitled ``Federal Law Protections for Religious Liberty'' and
the appendix to this Memorandum.
DATES: This notice is applicable on October 6, 2017.
FOR FURTHER INFORMATION CONTACT: Jennifer Dickey, Counsel, Office of
Legal Policy, U.S. Department of Justice, 950 Pennsylvania Avenue NW.,
Washington, D.C. 20530, phone (202) 514-4601.
SUPPLEMENTARY INFORMATION: The President instructed the Attorney
General to issue guidance interpreting religious liberty protections in
federal law, as appropriate. Exec. Order 13798, Sec. 4 (May 4, 2017).
Pursuant to that instruction and consistent with the authority to
provide advice and opinions on questions of existing law to the
Executive Branch, the Attorney General issued the following memorandum
to the heads of all executive departments and agencies on October 6,
2017.
Dated: October 20, 2017.
Beth Ann Williams,
Assistant Attorney General, Office of Legal Policy.
MEMORANDUM FOR ALL EXECUTIVE DEPARTMENTS AND AGENCIES
FROM: THE ATTORNEY GENERAL
SUBJECT: Federal Law Protections for Religious Liberty
The President has instructed me to issue guidance interpreting
religious liberty protections in federal law, as appropriate. Exec.
Order No. 13798 Sec. 4, 82 Fed. Reg. 21675 (May 4, 2017). Consistent
with that instruction, I am issuing this memorandum and appendix to
guide all administrative agencies and executive departments in the
execution of federal law.
Principles of Religious Liberty
Religious liberty is a foundational principle of enduring
importance in America, enshrined in our Constitution and other sources
of federal law. As James Madison explained in his Memorial and
Remonstrance Against Religious Assessments, the free exercise of
religion ``is in its nature an unalienable right'' because the duty
owed to one's Creator ``is precedent, both in order of time and in
degree of obligation, to the claims of Civil Society.'' \1\ Religious
liberty is not merely a right to personal religious beliefs or even to
worship in a sacred place. It also encompasses religious observance and
practice. Except in the narrowest circumstances, no one should be
forced to choose between living out his or her faith and complying with
the law. Therefore, to the greatest extent practicable and permitted by
law, religious observance and practice should be reasonably
accommodated in all government activity, including employment,
contracting, and programming. The following twenty principles should
guide administrative agencies and executive departments in carrying out
this task. These principles should be understood and interpreted in
light of the legal analysis set forth in the appendix to this
memorandum.
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\1\ James Madison, Memorial and Remonstrance Against Religious
Assessments (June 20, 1785), in 5 The Founders' Constitution 82
(Philip B. Kurland & Ralph Lerner eds., 1987).
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1. The freedom of religion is a fundamental right of paramount
importance, expressly protected by federal law.
Religious liberty is enshrined in the text of our Constitution and
in numerous federal statutes. It encompasses the right of all Americans
to exercise their religion freely, without being coerced to join an
established church or to satisfy a religious test as a qualification
for public office. It also encompasses the right of all Americans to
express their religious beliefs, subject to the same narrow limits that
apply to all forms of speech. In the United States, the free exercise
of religion is not a mere policy preference to be traded against other
policy preferences. It is a fundamental right.
2. The free exercise of religion includes the right to act or abstain
from action in accordance with one's religious beliefs.
The Free Exercise Clause protects not just the right to believe or
the right to worship; it protects the right to perform or abstain from
performing certain physical acts in accordance with one's beliefs.
Federal statutes, including the Religious Freedom Restoration Act of
1993 (``RFRA''), support that protection, broadly defining the exercise
of religion to encompass all aspects of observance and practice,
whether or not central to, or required by, a particular religious
faith.
3. The freedom of religion extends to persons and organizations.
The Free Exercise Clause protects not just persons, but persons
collectively exercising their religion through churches or other
religious denominations, religious organizations, schools, private
associations, and even businesses.
4. Americans do not give up their freedom of religion by participating
in the marketplace, partaking of the public square, or interacting with
government.
Constitutional protections for religious liberty are not
conditioned upon the willingness of a religious person or organization
to remain separate from civil society. Although the application of the
relevant protections may differ in different contexts, individuals and
organizations do not give up their religious-liberty protections by
providing or receiving social services, education, or healthcare; by
seeking to earn or earning a living; by employing others to do the
same; by receiving government grants or contracts; or by otherwise
interacting with federal, state, or local governments.
5. Government may not restrict acts or abstentions because of the
beliefs they display.
To avoid the very sort of religious persecution and intolerance
that led to the founding of the United States, the Free Exercise Clause
of the Constitution protects against government actions that target
religious conduct. Except in rare circumstances, government may not
treat the same conduct as lawful when undertaken for secular reasons
but unlawful when undertaken for religious reasons. For example,
government may not attempt to target religious persons or conduct by
allowing the distribution of political leaflets in a park but
forbidding the distribution of religious leaflets in the same park.
[[Page 49669]]
6. Government may not target religious individuals or entities for
special disabilities based on their religion.
Much as government may not restrict actions only because of
religious belief, government may not target persons or individuals
because of their religion. 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. For example, the Supreme Court has held that if
government provides reimbursement for scrap tires to replace child
playground surfaces, it may not deny participation in that program to
religious schools. Nor may government deny religious schools--including
schools whose curricula and activities include religious elements--the
right to participate in a voucher program, so long as the aid reaches
the schools through independent decisions of parents.
7. Government may not target religious individuals or entities through
discriminatory enforcement of neutral, generally applicable laws.
Although government generally may subject religious persons and
organizations to neutral, generally applicable laws--e.g., across-the-
board criminal prohibitions or certain time, place, and manner
restrictions on speech--government may not apply such laws in a
discriminatory way. For instance, the Internal Revenue Service may not
enforce the Johnson Amendment--which prohibits 501(c)(3) non-profit
organizations from intervening in a political campaign on behalf of a
candidate--against a religious non-profit organization under
circumstances in which it would not enforce the amendment against a
secular non-profit organization. Likewise, the National Park Service
may not require religious groups to obtain permits to hand out fliers
in a park if it does not require similarly situated secular groups to
do so, and no federal agency tasked with issuing permits for land use
may deny a permit to an Islamic Center seeking to build a mosque when
the agency has granted, or would grant, a permit to similarly situated
secular organizations or religious groups.
8. Government may not officially favor or disfavor particular religious
groups.
Together, the Free Exercise Clause and the Establishment Clause
prohibit government from officially preferring one religious group to
another. This principle of denominational neutrality means, for
example, that government cannot selectively impose regulatory burdens
on some denominations but not others. It likewise cannot favor some
religious groups for participation in the Combined Federal Campaign
over others based on the groups' religious beliefs.
9. Government may not interfere with the autonomy of a religious
organization.
Together, the Free Exercise Clause and the Establishment Clause
also restrict governmental interference in intra-denominational
disputes about doctrine, discipline, or qualifications for ministry or
membership. For example, government may not impose its
nondiscrimination rules to require Catholic seminaries or Orthodox
Jewish yeshivas to accept female priests or rabbis.
10. The Religious Freedom Restoration Act of 1993 prohibits the federal
government from substantially burdening any aspect of religious
observance or practice, unless imposition of that burden on a
particular religious adherent satisfies strict scrutiny.
RFRA prohibits the federal government from substantially burdening
a person's exercise of religion, unless the federal government
demonstrates that application of such burden to the religious adherent
is the least restrictive means of achieving a compelling governmental
interest. RFRA applies to all actions by federal administrative
agencies, including rulemaking, adjudication or other enforcement
actions, and grant or contract distribution and administration.
11. RFRA's protection extends not just to individuals, but also to
organizations, associations, and at least some for-profit corporations.
RFRA protects the exercise of religion by individuals and by
corporations, companies, associations, firms, partnerships, societies,
and joint stock companies. For example, the Supreme Court has held that
Hobby Lobby, a closely held, for-profit corporation with more than 500
stores and 13,000 employees, is protected by RFRA.
12. RFRA does not permit the federal government to second-guess the
reasonableness of a religious belief.
RFRA applies to all sincerely held religious beliefs, whether or
not central to, or mandated by, a particular religious organization or
tradition. Religious adherents will often be required to draw lines in
the application of their religious beliefs, and government is not
competent to assess the reasonableness of such lines drawn, nor would
it be appropriate for government to do so. Thus, for example, a
government agency may not second-guess the determination of a factory
worker that, consistent with his religious precepts, he can work on a
line producing steel that might someday make its way into armaments but
cannot work on a line producing the armaments themselves. Nor may the
Department of Health and Human Services second-guess the determination
of a religious employer that providing contraceptive coverage to its
employees would make the employer complicit in wrongdoing in violation
of the organization's religious precepts.
13. A governmental action substantially burdens an exercise of religion
under RFRA if it bans an aspect of an adherent's religious observance
or practice, compels an act inconsistent with that observance or
practice, or substantially pressures the adherent to modify such
observance or practice.
Because the government cannot second-guess the reasonableness of a
religious belief or the adherent's assessment of the religious
connection between the government mandate and the underlying religious
belief, the substantial burden test focuses on the extent of
governmental compulsion involved. In general, a government action that
bans an aspect of an adherent's religious observance or practice,
compels an act inconsistent with that observance or practice, or
substantially pressures the adherent to modify such observance or
practice, will qualify as a substantial burden on the exercise of
religion. For example, a Bureau of Prisons regulation that bans a
devout Muslim from growing even a half-inch beard in accordance with
his religious beliefs substantially burdens his religious practice.
Likewise, a Department of Health and Human Services regulation
requiring employers to provide insurance coverage for contraceptive
drugs in violation of their religious beliefs or face significant fines
substantially burdens their religious practice, and a law that
conditions receipt of significant government benefits on willingness to
work on Saturday substantially burdens the religious practice of those
who, as a matter of religious observance or practice, do not work on
that day. But a law that infringes, even severely, an aspect of an
adherent's religious observance or practice that the adherent himself
regards as unimportant or inconsequential imposes no substantial
[[Page 49670]]
burden on that adherent. And a law that regulates only the government's
internal affairs and does not involve any governmental compulsion on
the religious adherent likewise imposes no substantial burden.
14. The strict scrutiny standard applicable to RFRA is exceptionally
demanding.
Once a religious adherent has identified a substantial burden on
his or her religious belief, the federal government can impose that
burden on the adherent only if it is the least restrictive means of
achieving a compelling governmental interest. Only those interests of
the highest order can outweigh legitimate claims to the free exercise
of religion, and such interests must be evaluated not in broad
generalities but as applied to the particular adherent. Even if the
federal government could show the necessary interest, it would also
have to show that its chosen restriction on free exercise is the least
restrictive means of achieving that interest. That 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, expenditure of additional
funds, modification of existing exemptions, or creation of a new
program.
15. RFRA applies even where a religious adherent seeks an exemption
from a legal obligation requiring the adherent to confer benefits on
third parties.
Although burdens imposed on third parties are relevant to RFRA
analysis, the fact that an exemption would deprive a third party of a
benefit does not categorically render an exemption unavailable. Once an
adherent identifies a substantial burden on his or her religious
exercise, RFRA requires the federal government to establish that denial
of an accommodation or exemption to that adherent is the least
restrictive means of achieving a compelling governmental interest.
16. Title VII of the Civil Rights Act of 1964, as amended, prohibits
covered employers from discriminating against individuals on the basis
of their religion.
Employers covered by Title VII may not fail or refuse to hire,
discharge, or discriminate against any individual with respect to
compensation, terms, conditions, or privileges of employment because of
that individual's religion. Such employers also may not classify their
employees or applicants in a way that would deprive or tend to deprive
any individual of employment opportunities because of the individual's
religion. This protection applies regardless of whether the individual
is a member of a religious majority or minority. But the protection
does not apply in the same way to religious employers, who have certain
constitutional and statutory protections for religious hiring
decisions.
17. Title VII's protection extends to discrimination on the basis of
religious observance or practice as well as belief, unless the employer
cannot reasonably accommodate such observance or practice without undue
hardship on the business.
Title VII defines ``religion'' broadly to include all aspects of
religious observance or practice, except when an employer can establish
that a particular aspect of such observance or practice cannot
reasonably be accommodated without undue hardship to the business. For
example, covered employers are required to adjust employee work
schedules for Sabbath observance, religious holidays, and other
religious observances, unless doing so would create an undue hardship,
such as materially compromising operations or violating a collective
bargaining agreement. Title VII might also require an employer to
modify a no-head-coverings policy to allow a Jewish employee to wear a
yarmulke or a Muslim employee to wear a headscarf. An employer who
contends that it cannot reasonably accommodate a religious observance
or practice must establish undue hardship on its business with
specificity; it cannot rely on assumptions about hardships that might
result from an accommodation.
18. The Clinton Guidelines on Religious Exercise and Religious
Expression in the Federal Workplace provide useful examples for private
employers of reasonable accommodations for religious observance and
practice in the workplace.
President Clinton issued Guidelines on Religious Exercise and
Religious Expression in the Federal Workplace (``Clinton Guidelines'')
explaining that federal employees may keep religious materials on their
private desks and read them during breaks; discuss their religious
views with other employees, subject to the same limitations as other
forms of employee expression; display religious messages on clothing or
wear religious medallions; and invite others to attend worship services
at their churches, except to the extent that such speech becomes
excessive or harassing. The Clinton Guidelines have the force of an
Executive Order, and they also provide useful guidance to private
employers about ways in which religious observance and practice can
reasonably be accommodated in the workplace.
19. Religious employers are entitled to employ only persons whose
beliefs and conduct are consistent with the employers' religious
precepts.
Constitutional and statutory protections apply to certain religious
hiring decisions. Religious corporations, associations, educational
institutions, and societies--that is, entities that are organized for
religious purposes and engage in activity consistent with, and in
furtherance of, such purposes--have an express statutory exemption from
Title VII's prohibition on religious discrimination in employment.
Under that exemption, religious organizations may choose to employ only
persons whose beliefs and conduct are consistent with the
organizations' religious precepts. For example, a Lutheran secondary
school may choose to employ only practicing Lutherans, only practicing
Christians, or only those willing to adhere to a code of conduct
consistent with the precepts of the Lutheran community sponsoring the
school. Indeed, even in the absence of the Title VII exemption,
religious employers might be able to claim a similar right under RFRA
or the Religion Clauses of the Constitution.
20. As a general matter, the federal government may not condition
receipt of a federal grant or contract on the effective relinquishment
of a religious organization's hiring exemptions or attributes of its
religious character.
Religious organizations are entitled to compete on equal footing
for federal financial assistance used to support government programs.
Such organizations generally may not be required to alter their
religious character to participate in a government program, nor to
cease engaging in explicitly religious activities outside the program,
nor effectively to relinquish their federal statutory protections for
religious hiring decisions.
Guidance for Implementing Religious Liberty Principles
Agencies must pay keen attention, in everything they do, to the
foregoing principles of religious liberty.
Agencies as Employers
Administrative agencies should review their current policies and
practices to ensure that they comply
[[Page 49671]]
with all applicable federal laws and policies regarding accommodation
for religious observance and practice in the federal workplace, and all
agencies must observe such laws going forward. In particular, all
agencies should review the Guidelines on Religious Exercise and
Religious Expression in the Federal Workplace, which President Clinton
issued on August 14, 1997, to ensure that they are following those
Guidelines. All agencies should also consider practical steps to
improve safeguards for religious liberty in the federal workplace,
including through subject-matter experts who can answer questions about
religious nondiscrimination rules, information websites that employees
may access to learn more about their religious accommodation rights,
and training for all employees about federal protections for religious
observance and practice in the workplace.
Agencies Engaged in Rulemaking
In formulating rules, regulations, and policies, administrative
agencies should also proactively consider potential burdens on the
exercise of religion and possible accommodations of those burdens.
Agencies should consider designating an officer to review proposed
rules with religious accommodation in mind or developing some other
process to do so. In developing that process, agencies should consider
drawing upon the expertise of the White House Office of Faith-Based and
Neighborhood Partnerships to identify concerns about the effect of
potential agency action on religious exercise. Regardless of the
process chosen, agencies should ensure that they review all proposed
rules, regulations, and policies that have the potential to have an
effect on religious liberty for compliance with the principles of
religious liberty outlined in this memorandum and appendix before
finalizing those rules, regulations, or policies. The Office of Legal
Policy will also review any proposed agency or executive action upon
which the Department's comments, opinion, or concurrence are sought,
see, e.g., Exec. Order 12250 Sec. 1-2, 45 Fed. Reg. 72995 (Nov. 2,
1980), to ensure that such action complies with the principles of
religious liberty outlined in this memorandum and appendix. The
Department will not concur in any proposed action that does not comply
with federal law protections for religious liberty as interpreted in
this memorandum and appendix, and it will transmit any concerns it has
about the proposed action to the agency or the Office of Management and
Budget as appropriate. If, despite these internal reviews, a member of
the public identifies a significant concern about a prospective rule's
compliance with federal protections governing religious liberty during
a period for public comment on the rule, the agency should carefully
consider and respond to that request in its decision. See Perez v.
Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015). In appropriate
circumstances, an agency might explain that it will consider requests
for accommodations on a case-by-case basis rather than in the rule
itself, but the agency should provide a reasoned basis for that
approach.
Agencies Engaged in Enforcement Actions
Much like administrative agencies engaged in rulemaking, agencies
considering potential enforcement actions should consider whether such
actions are consistent with federal protections for religious liberty.
In particular, agencies should remember that RFRA applies to agency
enforcement just as it applies to every other governmental action. An
agency should consider RFRA when setting agency-wide enforcement rules
and priorities, as well as when making decisions to pursue or continue
any particular enforcement action, and when formulating any generally
applicable rules announced in an agency adjudication.
Agencies should remember that discriminatory enforcement of an
otherwise nondiscriminatory law can also violate the Constitution.
Thus, agencies may not target or single out religious organizations or
religious conduct for disadvantageous treatment in enforcement
priorities or actions. The President identified one area where this
could be a problem in Executive Order 13798, when he directed the
Secretary of the Treasury, to the extent permitted by law, not to take
any ``adverse action against any individual, house of worship, or other
religious organization on the basis that such individual or
organization speaks or has spoken about moral or political issues from
a religious perspective, where speech of similar character'' from a
non-religious perspective has not been treated as participation or
intervention in a political campaign. Exec. Order No. 13798, Sec. 2,
82 Fed. Reg. at 21675. But the requirement of nondiscrimination toward
religious organizations and conduct applies across the enforcement
activities of the Executive Branch, including within the enforcement
components of the Department of Justice.
Agencies Engaged in Contracting and Distribution of Grants
Agencies also must not discriminate against religious organizations
in their contracting or grant-making activities. Religious
organizations should be given the opportunity to compete for government
grants or contracts and participate in government programs on an equal
basis with nonreligious organizations. Absent unusual circumstances,
agencies should not condition receipt of a government contract or grant
on the effective relinquishment of a religious organization's Section
702 exemption for religious hiring practices, or any other
constitutional or statutory protection for religious organizations. In
particular, agencies should not attempt through conditions on grants or
contracts to meddle in the internal governance affairs of religious
organizations or to limit those organizations' otherwise protected
activities.
* * * * *
Any questions about this memorandum or the appendix should be addressed
to the Office of Legal Policy, U.S. Department of Justice, 950
Pennsylvania Avenue NW., Washington, DC 20530, phone (202) 514-4601.
APPENDIX
Although not an exhaustive treatment of all federal protections for
religious liberty, this appendix summarizes the key constitutional and
federal statutory protections for religious liberty and sets forth the
legal basis for the religious liberty principles described in the
foregoing memorandum.
Constitutional Protections
The people, acting through their Constitution, have singled out
religious liberty as deserving of unique protection. In the original
version of the Constitution, the people agreed that ``no religious Test
shall ever be required as a Qualification to any Office or public Trust
under the United States.'' U.S. Const., art. VI, cl. 3. The people then
amended the Constitution during the First Congress to clarify that
``Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.'' U.S. Const. amend. I, cl.
1. Those protections have been incorporated against the States. Everson
v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947) (Establishment Clause);
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (Free Exercise
Clause).
[[Page 49672]]
A. Free Exercise Clause
The Free Exercise Clause recognizes and guarantees Americans the
``right to believe and profess whatever religious doctrine [they]
desire [ ].'' Empl't Div. v. Smith, 494 U.S. 872, 877 (1990).
Government may not attempt to regulate religious beliefs, compel
religious beliefs, or punish religious beliefs. See id.; see also
Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v. Watkins, 367
U.S. 488, 492-93, 495 (1961); United States v. Ballard, 322 U.S. 78, 86
(1944). It may not lend its power to one side in intra-denominational
disputes about dogma, authority, discipline, or qualifications for
ministry or membership. Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. EEOC, 565 U.S. 171, 185 (2012); Smith, 494 U.S. at 877; Serbian
Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976);
Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian
Church, 393 U.S. 440, 451 (1969); Kedroff v. St. Nicholas Cathedral of
the Russian Orthodox Church, 344 U.S. 94, 116, 120-21 (1952). It may
not discriminate against or impose special burdens upon individuals
because of their religious beliefs or status. Smith, 494 U.S. at 877;
McDaniel v. Paty, 435 U.S. 618, 627 (1978). And with the exception of
certain historical limits on the freedom of speech, government may not
punish or otherwise harass churches, church officials, or religious
adherents for speaking on religious topics or sharing their religious
beliefs. See Widmar v. Vincent, 454 U.S. 263, 269 (1981); see also U.S.
Const., amend. I, cl. 3. The Constitution's protection against
government regulation of religious belief is absolute; it is not
subject to limitation or balancing against the interests of the
government. Smith, 494 U.S. at 877; Sherbert, 374 U.S. at 402; see also
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
(``If there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein.'').
The Free Exercise Clause protects beliefs rooted in religion, even
if such beliefs are not mandated by a particular religious organization
or shared among adherents of a particular religious tradition. Frazee
v. Illinois Dept. of Emp't Sec., 489 U.S. 829, 833-34 (1989). As the
Supreme Court has repeatedly counseled, ``religious beliefs need not be
acceptable, logical, consistent, or comprehensible to others in order
to merit First Amendment protection.'' Church of the Lukumi Babalu Aye
v. Hialeah, 508 U.S. 520, 531 (1993) (internal quotation marks
omitted). They must merely be ``sincerely held.'' Frazee, 489 U.S. at
834.
Importantly, the protection of the Free Exercise Clause also
extends to acts undertaken in accordance with such sincerely-held
beliefs. That conclusion flows from the plain text of the First
Amendment, which guarantees the freedom to ``exercise'' religion, not
just the freedom to ``believe'' in religion. See Smith, 494 U.S. at
877; see also Thomas, 450 U.S. at 716; Paty, 435 U.S. at 627; Sherbert,
374 U.S. at 403-04; Wisconsin v. Yoder, 406 U.S. 205, 219-20 (1972).
Moreover, no other interpretation would actually guarantee the freedom
of belief that Americans have so long regarded as central to individual
liberty. Many, if not most, religious beliefs require external
observance and practice through physical acts or abstention from acts.
The tie between physical acts and religious beliefs may be readily
apparent (e.g., attendance at a worship service) or not (e.g., service
to one's community at a soup kitchen or a decision to close one's
business on a particular day of the week). The ``exercise of religion''
encompasses all aspects of religious observance and practice. And
because individuals may act collectively through associations and
organizations, it encompasses the exercise of religion by such entities
as well. See, e.g., Hosanna-Tabor, 565 U.S. at 199; Church of the
Lukumi Babalu Aye, 508 U.S. at 525-26, 547; see also Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751, 2770, 2772-73 (2014) (even a
closely held for-profit corporation may exercise religion if operated
in accordance with asserted religious principles).
As with most constitutional protections, however, the protection
afforded to Americans by the Free Exercise Clause for physical acts is
not absolute, Smith, 491 U.S. at 878-79, and the Supreme Court has
identified certain principles to guide the analysis of the scope of
that protection. First, government may not restrict ``acts or
abstentions only when they are engaged in for religious reasons, or
only because of the religious belief that they display,'' id. at 877,
nor ``target the religious for special disabilities based on their
religious status,'' Trinity Lutheran Church of Columbia, Inc. v. Comer,
582 U.S. ___, ___ (2017) (slip op. at 6) (internal quotation marks
omitted), for it was precisely such ``historical instances of religious
persecution and intolerance that gave concern to those who drafted the
Free Exercise Clause.'' Church of the Lukumi Babalu Aye, 508 U.S. at
532 (internal quotation marks omitted). The Free Exercise Clause
protects against ``indirect coercion or penalties on the free exercise
of religion'' just as surely as it protects against ``outright
prohibitions'' on religious exercise. Trinity Lutheran, 582 U.S. at ___
(slip op. at 11) (internal quotation marks omitted). ``It is too late
in the day to doubt that the liberties of religion and expression may
be infringed by the denial of or placing of conditions upon a benefit
or privilege.'' Id. (quoting Sherbert, 374 U.S. at 404).
Because a law cannot have as its official ``object or purpose . . .
the suppression of religion or religious conduct,'' courts must
``survey meticulously'' the text and operation of a law to ensure that
it is actually neutral and of general applicability. Church of the
Lukumi Babalu Aye, 508 U.S. at 533-34 (internal quotation marks
omitted). A law is not neutral if it singles out particular religious
conduct for adverse treatment; treats the same conduct as lawful when
undertaken for secular reasons but unlawful when undertaken for
religious reasons; visits ``gratuitous restrictions on religious
conduct''; or ``accomplishes . . . a `religious gerrymander,' an
impermissible attempt to target [certain individuals] and their
religious practices.'' Id. at 533-35, 538 (internal quotation marks
omitted). A law is not generally applicable if ``in a selective manner
[it] impose[s] burdens only on conduct motivated by religious belief,''
id. at 543, including by ``fail[ing] to prohibit nonreligious conduct
that endangers [its] interests in a similar or greater degree than . .
. does'' the prohibited conduct, id., or enables, expressly or de
facto, ``a system of individualized exemptions,'' as discussed in
Smith, 494 U.S. at 884; see also Church of the Lukumi Babalu Aye, 508
U.S. at 537.
``Neutrality and general applicability are interrelated, . . .
[and] failure to satisfy one requirement is a likely indication that
the other has not been satisfied.'' Id. at 531. For example, a law that
disqualifies a religious person or organization from a right to compete
for a public benefit--including a grant or contract--because of the
person's religious character is neither neutral nor generally
applicable. See Trinity Lutheran, 582 U.S. at ___-___ (slip op. at 9-
11). Likewise, a law that selectively prohibits the killing of animals
for religious reasons and fails to prohibit the killing of animals for
many nonreligious reasons, or that selectively prohibits a business
from refusing to stock a product for religious reasons but fails to
prohibit such refusal for myriad
[[Page 49673]]
commercial reasons, is neither neutral, nor generally applicable. See
Church of the Lukumi Babalu Aye, 508 U.S. at 533-36, 542-45.
Nonetheless, the requirements of neutral and general applicability are
separate, and any law burdening religious practice that fails one or
both must be subjected to strict scrutiny, id. at 546.
Second, even a neutral, generally applicable law is subject to
strict scrutiny under this Clause if it restricts the free exercise of
religion and another constitutionally protected liberty, such as the
freedom of speech or association, or the right to control the
upbringing of one's children. See Smith, 494 U.S. at 881-82; Axson-
Flynn v. Johnson, 356 F.3d 1277, 1295-97 (10th Cir. 2004). Many Free
Exercise cases fall in this category. For example, a law that seeks to
compel a private person's speech or expression contrary to his or her
religious beliefs implicates both the freedoms of speech and free
exercise. See, e.g., Wooley v. Maynard, 430 U.S. 705, 707-08 (1977)
(challenge by Jehovah's Witnesses to requirement that state license
plates display the motto ``Live Free or Die''); Axson-Flynn, 356 F.3d
at 1280 (challenge by Mormon student to University requirement that
student actors use profanity and take God's name in vain during
classroom acting exercises). A law taxing or prohibiting door-to-door
solicitation, at least as applied to individuals distributing religious
literature and seeking contributions, likewise implicates the freedoms
of speech and free exercise. Murdock v. Pennsylvania, 319 U.S. 105,
108-09 (1943) (challenge by Jehovah's Witnesses to tax on canvassing or
soliciting); Cantwell, 310 U.S. at 307 (same). A law requiring children
to receive certain education, contrary to the religious beliefs of
their parents, implicates both the parents' right to the care, custody,
and control of their children and to free exercise. Yoder, 406 U.S. at
227-29 (challenge by Amish parents to law requiring high school
attendance).
Strict scrutiny is the ``most rigorous'' form of scrutiny
identified by the Supreme Court. Church of the Lukumi Babalu Aye, 508
U.S. at 546; see also City of Boerne v. Flores, 521 U.S. 507, 534
(1997) (``Requiring a State to demonstrate a compelling interest and
show that it has adopted the least restrictive means of achieving that
interest is the most demanding test known to constitutional law.''). It
is the same standard applied to governmental classifications based on
race, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 720 (2007), and restrictions on the freedom of speech, Reed
v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2228 (2015). See Church of
the Lukumi Babalu Aye, 508 U.S. at 546-47. Under this level of
scrutiny, government must establish that a challenged law ``advance[s]
interests of the highest order'' and is ``narrowly tailored in pursuit
of those interests.'' Id. at 546 (internal quotation marks omitted).
``[O]nly in rare cases'' will a law survive this level of scrutiny. Id.
Of course, even when a law is neutral and generally applicable,
government may run afoul of the Free Exercise Clause if it interprets
or applies the law in a manner that discriminates against religious
observance and practice. See, e.g., Church of the Lukumi Babalu Aye,
508 U.S. at 537 (government discriminatorily interpreted an ordinance
prohibiting the unnecessary killing of animals as prohibiting only
killing of animals for religious reasons); Fowler v. Rhode Island, 345
U.S. 67, 69-70 (1953) (government discriminatorily enforced ordinance
prohibiting meetings in public parks against only certain religious
groups). The Free Exercise Clause, much like the Free Speech Clause,
requires equal treatment of religious adherents. See Trinity Lutheran,
582 U.S. at __ (slip op. at 6); cf. Good News Club v. Milford Central
Sch., 533 U.S. 98, 114 (2001) (recognizing that Establishment Clause
does not justify discrimination against religious clubs seeking use of
public meeting spaces); Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 837, 841 (1995) (recognizing that Establishment
Clause does not justify discrimination against religious student
newspaper's participation in neutral reimbursement program). That is
true regardless of whether the discriminatory application is initiated
by the government itself or by private requests or complaints. See,
e.g., Fowler, 345 U.S. at 69; Niemotko v. Maryland, 340 U.S. 268, 272
(1951).
B. Establishment Clause
The Establishment Clause, too, protects religious liberty. It
prohibits government from establishing a religion and coercing
Americans to follow it. See Town of Greece, N.Y. v. Galloway, 134 S.
Ct. 1811, 1819-20 (2014); Good News Club, 533 U.S. at 115. It restricts
government from interfering in the internal governance or
ecclesiastical decisions of a religious organization. Hosanna-Tabor,
565 U.S. at 188-89. And it prohibits government from officially
favoring or disfavoring particular religious groups as such or
officially advocating particular religious points of view. See
Galloway, 134 S. Ct. at 1824; Larson v. Valente, 456 U.S. 228, 244-46
(1982). Indeed, ``a significant factor in upholding governmental
programs in the face of Establishment Clause attack is their neutrality
towards religion.'' Rosenberger, 515 U.S. at 839 (emphasis added). That
``guarantee of neutrality is respected, not offended, when the
government, following neutral criteria and evenhanded policies, extends
benefits to recipients whose ideologies and viewpoints, including
religious ones, are broad and diverse.'' Id. Thus, religious adherents
and organizations may, like nonreligious adherents and organizations,
receive indirect financial aid through independent choice, or, in
certain circumstances, direct financial aid through a secular-aid
program. See, e.g., Trinity Lutheran, 582 U.S. at ___ (slip. op. at 6)
(scrap tire program); Zelman v. Simmons-Harris, 536 U.S. 639, 652
(2002) (voucher program).
C. Religious Test Clause
Finally, the Religious Test Clause, though rarely invoked, provides
a critical guarantee to religious adherents that they may serve in
American public life. The Clause reflects the judgment of the Framers
that a diversity of religious viewpoints in government would enhance
the liberty of all Americans. And after the Religion Clauses were
incorporated against the States, the Supreme Court shared this view,
rejecting a Tennessee law that ``establishe[d] as a condition of office
the willingness to eschew certain protected religious practices.''
Paty, 435 U.S. at 632 (Brennan, J., and Marshall, J., concurring in
judgment); see also id. at 629 (plurality op.) (``[T]he American
experience provides no persuasive support for the fear that clergymen
in public office will be less careful of anti-establishment interests
or less faithful to their oaths of civil office than their unordained
counterparts.'').
Statutory Protections
Recognizing the centrality of religious liberty to our nation,
Congress has buttressed these constitutional rights with statutory
protections for religious observance and practice. These protections
can be found in, among other statutes, the Religious Freedom
Restoration Act of 1993, 42 U.S.C. 2000bb et seq.; the Religious Land
Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq.; Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.; and the
American Indian Religious Freedom Act, 42 U.S.C. 1996. Such protections
ensure not only that government tolerates religious observance and
practice, but that it embraces religious adherents as full
[[Page 49674]]
members of society, able to contribute through employment, use of
public accommodations, and participation in government programs. The
considered judgment of the United States is that we are stronger
through accommodation of religion than segregation or isolation of it.
A. Religious Freedom Restoration Act of 1993 (RFRA)
The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C.
2000bb et seq., prohibits the federal government from ``substantially
burden[ing] a person's exercise of religion'' unless ``it demonstrates
that application of the burden to the person (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.'' Id. Sec.
2000bb-1(a), (b). The Act applies even where the burden arises out of a
``rule of general applicability'' passed without animus or
discriminatory intent. See id. Sec. 2000bb-1(a). It applies to ``any
exercise of religion, whether or not compelled by, or central to, a
system of religious belief,'' see Sec. Sec. 2000bb-2(4), 2000cc-5(7),
and covers ``individuals'' as well as ``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.
Subject to the exceptions identified below, a law ``substantially
burden[s] a person's exercise of religion,'' 42 U.S.C. 2000bb-1, if it
bans an aspect of the adherent's religious observance or practice,
compels an act inconsistent with that observance or practice, or
substantially pressures the adherent to modify such observance or
practice, see Sherbert, 374 U.S. at 405-06. The ``threat of criminal
sanction'' will satisfy these principles, even when, as in Yoder, the
prospective punishment is a mere $5 fine. 406 U.S. at 208, 218. And the
denial of, or condition on the receipt of, government benefits may
substantially burden the exercise of religion under these principles.
Sherbert, 374 U.S. at 405-06; see also Hobbie v. Unemployment Appeals
Comm'n of Fla., 480 U.S. 136, 141 (1987); Thomas, 450 U.S. at 717-18.
But a law that infringes, even severely, an aspect of an adherent's
religious observance or practice that the adherent himself regards as
unimportant or inconsequential imposes no substantial burden on that
adherent. And a law that regulates only the government's internal
affairs and does not involve any governmental compulsion on the
religious adherent likewise imposes no substantial burden. See, e.g.,
Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 448-49
(1988); Bowen v. Roy, 476 U.S. 693, 699-700 (1986).
As with claims under the Free Exercise Clause, RFRA does not permit
a court to inquire into the reasonableness of a religious belief,
including into the adherent's assessment of the religious connection
between a belief asserted and what the government forbids, requires, or
prevents. Hobby Lobby, 134 S. Ct. at 2778. If the proffered belief is
sincere, it is not the place of the government or a court to second-
guess it. Id. A good illustration of the point is Thomas v. Review
Board of Indiana Employment Security Division--one of the Sherbert line
of cases, whose analytical test Congress sought, through RFRA, to
restore, 42 U.S.C. 2000bb. There, the Supreme Court concluded that the
denial of unemployment benefits was a substantial burden on the
sincerely held religious beliefs of a Jehovah's Witness who had quit
his job after he was transferred from a department producing sheet
steel that could be used for military armaments to a department
producing turrets for military tanks. Thomas, 450 U.S. at 716-18. In
doing so, the Court rejected the lower court's inquiry into ``what [the
claimant's] belief was and what the religious basis of his belief
was,'' noting that no one had challenged the sincerity of the
claimant's religious beliefs and that ``[c]ourts should not undertake
to dissect religious beliefs because the believer admits that he is
struggling with his position or because his beliefs are not articulated
with the clarity and precision that a more sophisticated person might
employ.'' Id. at 714-15 (internal quotation marks omitted). The Court
likewise rejected the lower court's comparison of the claimant's views
to those of other Jehovah's Witnesses, noting that ``[i]ntrafaith
differences of that kind are not uncommon among followers of a
particular creed, and the judicial process is singularly ill equipped
to resolve such differences.'' Id. at 715. The Supreme Court reinforced
this reasoning in Hobby Lobby, rejecting the argument that ``the
connection between what the objecting parties [were required to] do
(provide health-insurance coverage for four methods of contraception
that may operate after the fertilization of an egg) and the end that
they [found] to be morally wrong (destruction of an embryo) [wa]s
simply too attenuated.'' 134 S. Ct. at 2777. The Court explained that
the plaintiff corporations had a sincerely-held religious belief that
provision of the coverage was morally wrong, and it was ``not for us to
say that their religious beliefs are mistaken or insubstantial.'' Id.
at 2779.
Government bears a heavy burden to justify a substantial burden on
the exercise of religion. ``[O]nly those interests of the highest order
. . . can overbalance legitimate claims to the free exercise of
religion.'' Thomas, 450 U.S. at 718 (quoting Yoder, 406 U.S. at 215).
Such interests include, for example, the ``fundamental, overriding
interest in eradicating racial discrimination in education--
discrimination that prevailed, with official approval, for the first
165 years of this Nation's history,'' Bob Jones Univ. v. United States,
461 U.S. 574, 604 (1983), and the interest in ensuring the ``mandatory
and continuous participation'' that is ``indispensable to the fiscal
vitality of the social security system,'' United States v. Lee, 455
U.S. 252, 258-59 (1982). But ``broadly formulated interests justifying
the general applicability of government mandates'' are insufficient.
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.
418, 431 (2006). The government must establish a compelling interest to
deny an accommodation to the particular claimant. Id. at 430, 435-38.
For example, the military may have a compelling interest in its uniform
and grooming policy to ensure military readiness and protect our
national security, but it does not necessarily follow that those
interests would justify denying a particular soldier's request for an
accommodation from the uniform and grooming policy. See, e.g.,
Secretary of the Army, Army Directive 2017-03, Policy for Brigade-Level
Approval of Certain Requests for Religious Accommodation (2017)
(recognizing the ``successful examples of Soldiers currently serving
with'' an accommodation for ``the wear of a hijab; the wear of a beard;
and the wear of a turban or under-turban/patka, with uncut beard and
uncut hair'' and providing for a reasonable accommodation of these
practices in the Army). The military would have to show that it has a
compelling interest in denying that particular accommodation. An
asserted compelling interest in denying an accommodation to a
particular claimant is undermined by evidence that exemptions or
accommodations have been granted for other interests. See O Centro, 546
U.S. at 433, 436-37; see also Hobby Lobby, 134 S. Ct. at 2780.
The compelling-interest requirement applies even where the
accommodation sought is ``an exemption from a legal obligation
requiring [the claimant] to
[[Page 49675]]
confer benefits on third parties.'' Hobby Lobby, 134 S. Ct. at 2781
n.37. Although ``in applying RFRA `courts must take adequate account of
the burdens a requested accommodation may impose on nonbeneficiaries,'
'' the Supreme Court has explained that almost any governmental
regulation could be reframed as a legal obligation requiring a claimant
to confer benefits on third parties. Id. (quoting Cutter v. Wilkinson,
544 U.S. 709, 720 (2005)). As nothing in the text of RFRA admits of an
exception for laws requiring a claimant to confer benefits on third
parties, 42 U.S.C. 2000bb-1, and such an exception would have the
potential to swallow the rule, the Supreme Court has rejected the
proposition that RFRA accommodations are categorically unavailable for
laws requiring claimants to confer benefits on third parties. Hobby
Lobby, 134 S. Ct. at 2781 n.37.
Even if the government can identify a compelling interest, the
government must also show that denial of an accommodation is the least
restrictive means of serving that compelling governmental interest.
This standard is ``exceptionally demanding.'' Hobby Lobby, 134 S. Ct.
at 2780. It 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, expenditure
of additional funds, modification of existing exemptions, or creation
of a new program. Id. at 2781. Indeed, the existence of exemptions for
other individuals or entities that could be expanded to accommodate the
claimant, while still serving the government's stated interests, will
generally defeat a RFRA defense, as the government bears the burden to
establish that no accommodation is viable. See id. at 2781-82.
B. Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA)
Although Congress's leadership in adopting RFRA led many States to
pass analogous statutes, Congress recognized the unique threat to
religious liberty posed by certain categories of state action and
passed the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA) to address them. RLUIPA extends a standard analogous to RFRA
to state and local government actions regulating land use and
institutionalized persons where ``the substantial burden is imposed in
a program or activity that receives Federal financial assistance'' or
``the substantial burden affects, or removal of that substantial burden
would affect, commerce with foreign nations, among the several States,
or with Indian tribes.'' 42 U.S.C. 2000cc(a)(2), 2000cc-1(b).
RLUIPA's protections must ``be construed in favor of a broad
protection of religious exercise, to the maximum extent permitted by
[RLUIPA] and the Constitution.'' Id. Sec. 2000cc-3(g). RLUIPA applies
to ``any exercise of religion, whether or not compelled by, or central
to, a system of religious belief,'' id. Sec. 2000cc-5(7)(A), and
treats ``[t]he use, building, or conversion of real property for the
purpose of religious exercise'' as the ``religious exercise of the
person or entity that uses or intends to use the property for that
purpose,'' id. Sec. 2000cc-5(7)(B). Like RFRA, RLUIPA prohibits
government from substantially burdening an exercise of religion unless
imposition of the burden on the religious adherent is the least
restrictive means of furthering a compelling governmental interest. See
id. Sec. 2000cc-1(a). That standard ``may require a government to
incur expenses in its own operations to avoid imposing a substantial
burden on religious exercise.'' Id. Sec. 2000cc-3(c); cf. Holt v.
Hobbs, 135 S. Ct. 853, 860, 864-65 (2015).
With respect to land use in particular, RLUIPA also requires that
government not ``treat[] a religious assembly or institution on less
than equal terms with a nonreligious assembly or institution,'' 42
U.S.C. 2000cc(b)(1), ``impose or implement a land use regulation that
discriminates against any assembly or institution on the basis of
religion or religious denomination,'' id. Sec. 2000cc(b)(2), or
``impose or implement a land use regulation that (A) totally excludes
religious assemblies from a jurisdiction; or (B) unreasonably limits
religious assemblies, institutions, or structures within a
jurisdiction,'' id. Sec. 2000cc(b)(3). A claimant need not show a
substantial burden on the exercise of religion to enforce these
antidiscrimination and equal terms provisions listed in Sec.
2000cc(b). See id. Sec. 2000cc(b); see also Lighthouse Inst. for
Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 262-64 (3d Cir.
2007), cert. denied, 553 U.S. 1065 (2008). Although most RLUIPA cases
involve places of worship like churches, mosques, synagogues, and
temples, the law applies more broadly to religious schools, religious
camps, religious retreat centers, and religious social service
facilities. Letter from U.S. Dep't of Justice Civil Rights Division to
State, County, and Municipal Officials re: The Religious Land Use and
Institutionalized Persons Act (Dec. 15, 2016).
C. Other Civil Rights Laws
To incorporate religious adherents fully into society, Congress has
recognized that it is not enough to limit governmental action that
substantially burdens the exercise of religion. It must also root out
public and private discrimination based on religion. Religious
discrimination stood alongside discrimination based on race, color, and
national origin, as an evil to be addressed in the Civil Rights Act of
1964, and Congress has continued to legislate against such
discrimination over time. Today, the United States Code includes
specific prohibitions on religious discrimination in places of public
accommodation, 42 U.S.C. 2000a; in public facilities, id. Sec. 2000b;
in public education, id. Sec. 2000c-6; in employment, id. Sec. Sec.
2000e, 2000e-2, 2000e-16; in the sale or rental of housing, id. Sec.
3604; in the provision of certain real-estate transaction or brokerage
services, id. Sec. Sec. 3605, 3606; in federal jury service, 28 U.S.C.
1862; in access to limited open forums for speech, 20 U.S.C. 4071; and
in participation in or receipt of benefits from various federally-
funded programs, 15 U.S.C. 3151; 20 U.S.C. 1066c(d), 1071(a)(2), 1087-
4, 7231d(b)(2), 7914; 31 U.S.C. 6711(b)(3); 42 U.S.C. 290cc-33(a)(2),
300w-7(a)(2), 300x-57(a)(2), 300x-65(f), 604a(g), 708(a)(2), 5057(c),
5151(a), 5309(a), 6727(a), 9858l(a)(2), 10406(2)(B), 10504(a),
10604(e), 12635(c)(1), 12832, 13791(g)(3), 13925(b)(13)(A).
Invidious religious discrimination may be directed at religion in
general, at a particular religious belief, or at particular aspects of
religious observance and practice. See, e.g., Church of the Lukumi
Babalu Aye, 508 U.S. at 532-33. A law drawn to prohibit a specific
religious practice may discriminate just as severely against a
religious group as a law drawn to prohibit the religion itself. See id.
No one would doubt that a law prohibiting the sale and consumption of
Kosher meat would discriminate against Jewish people. True equality may
also require, depending on the applicable statutes, an awareness of,
and willingness reasonably to accommodate, religious observance and
practice. Indeed, the denial of reasonable accommodations may be little
more than cover for discrimination against a particular religious
belief or religion in general and is counter to the general
determination of Congress that the United States is best served by the
participation of religious adherents in society, not their withdrawal
from it.
[[Page 49676]]
1. Employment
i. Protections for Religious Employees
Protections for religious individuals in employment are the most
obvious example of Congress's instruction that religious observance and
practice be reasonably accommodated, not marginalized. In Title VII of
the Civil Rights Act, Congress declared it an unlawful employment
practice for a covered employer to (1) ``fail or refuse to hire or to
discharge any individual, or otherwise . . . discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's . . .
religion,'' as well as (2) to ``limit, segregate, or classify his
employees or applicants for employment in any way which would deprive
or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such
individual's . . . religion.'' 42 U.S.C. 2000e-2(a); see also 42 U.S.C.
2000e-16(a) (applying Title VII to certain federal-sector employers); 3
U.S.C. 411(a) (applying Title VII employment in the Executive Office of
the President). The protection applies ``regardless of whether the
discrimination is directed against [members of religious] majorities or
minorities.'' Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71-
72 (1977).
After several courts had held that employers did not violate Title
VII when they discharged employees for refusing to work on their
Sabbath, Congress amended Title VII to define ``[r]eligion'' broadly to
include ``all aspects of religious observance and practice, as well as
belief, unless an employer demonstrates that he is unable to reasonably
accommodate to an employee's or prospective employee's religious
observance or practice without undue hardship on the conduct of the
employer's business.'' 42 U.S.C. 2000e(j); Hardison, 432 U.S. at 74
n.9. Congress thus made clear that discrimination on the basis of
religion includes discrimination on the basis of any aspect of an
employee's religious observance or practice, at least where such
observance or practice can be reasonably accommodated without undue
hardship.
Title VII's reasonable accommodation requirement is meaningful. As
an initial matter, it requires an employer to consider what adjustment
or modification to its policies would effectively address the
employee's concern, for ``[a]n ineffective modification or adjustment
will not accommodate'' a person's religious observance or practice,
within the ordinary meaning of that word. See U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 400 (2002) (considering the ordinary meaning in
the context of an ADA claim). Although there is no obligation to
provide an employee with his or her preferred reasonable accommodation,
see Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986), an
employer may justify a refusal to accommodate only by showing that ``an
undue hardship [on its business] would in fact result from each
available alternative method of accommodation.'' 29 CFR Sec.
1605.2(c)(1) (emphasis added). ``A mere assumption that many more
people, with the same religious practices as the person being
accommodated, may also need accommodation is not evidence of undue
hardship.'' Id. Likewise, the fact that an accommodation may grant the
religious employee a preference is not evidence of undue hardship as,
``[b]y definition, any special `accommodation' requires the employer to
treat an employee . . . differently, i.e., preferentially.'' U.S.
Airways, 535 U.S. at 397; see also E.E.O.C. v. Abercrombie & Fitch
Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (``Title VII does not demand
mere neutrality with regard to religious practices--that they may be
treated no worse than other practices. Rather, it gives them favored
treatment.'').
Title VII does not, however, require accommodation at all costs. As
noted above, an employer is not required to accommodate a religious
observance or practice if it would pose an undue hardship on its
business. An accommodation might pose an ``undue hardship,'' for
example, if it would require the employer to breach an otherwise valid
collective bargaining agreement, see, e.g., Hardison, 432 U.S. at 79,
or carve out a special exception to a seniority system, id. at 83; see
also U.S. Airways, 535 U.S. at 403. Likewise, an accommodation might
pose an ``undue hardship'' if it would impose ``more than a de minimis
cost'' on the business, such as in the case of a company where weekend
work is ``essential to [the] business'' and many employees have
religious observances that would prohibit them from working on the
weekends, so that accommodations for all such employees would result in
significant overtime costs for the employer. Hardison, 432 U.S. at 80,
84 & n.15. In general, though, Title VII expects positive results for
society from a cooperative process between an employer and its employee
``in the search for an acceptable reconciliation of the needs of the
employee's religion and the exigencies of the employer's business.''
Philbrook, 479 U.S. at 69 (internal quotations omitted).
The area of religious speech and expression is a useful example of
reasonable accommodation. Where speech or expression is part of a
person's religious observance and practice, it falls within the scope
of Title VII. See 42 U.S.C. 2000e, 2000e-2. Speech or expression
outside of the scope of an individual's employment can almost always be
accommodated without undue hardship to a business. Speech or expression
within the scope of an individual's employment, during work hours, or
in the workplace may, depending upon the facts and circumstances, be
reasonably accommodated. Cf. Abercrombie, 135 S. Ct. at 2032.
The federal government's approach to free exercise in the federal
workplace provides useful guidance on such reasonable accommodations.
For example, under the Guidelines issued by President Clinton, the
federal government permits a federal employee to ``keep a Bible or
Koran on her private desk and read it during breaks''; to discuss his
religious views with other employees, subject ``to the same rules of
order as apply to other employee expression''; to display religious
messages on clothing or wear religious medallions visible to others;
and to hand out religious tracts to other employees or invite them to
attend worship services at the employee's church, except to the extent
that such speech becomes excessive or harassing. Guidelines on
Religious Exercise and Religious Expression in the Federal Workplace,
Sec. 1(A), Aug. 14, 1997 (hereinafter ``Clinton Guidelines''). The
Clinton Guidelines have the force of an Executive Order. See Legal
Effectiveness of a Presidential Directive, as Compared to an Executive
Order, 24 Op. O.L.C. 29, 29 (2000) (``[T]here is no substantive
difference in the legal effectiveness of an executive order and a
presidential directive that is styled other than as an executive
order.''); see also Memorandum from President William J. Clinton to the
Heads of Executive Departments and Agencies (Aug. 14, 1997) (``All
civilian executive branch agencies, officials, and employees must
follow these Guidelines carefully.''). The successful experience of the
federal government in applying the Clinton Guidelines over the last
twenty years is evidence that religious speech and expression can be
reasonably accommodated in the workplace without exposing an employer
to liability under workplace harassment laws.
[[Page 49677]]
Time off for religious holidays is also often an area of concern.
The observance of religious holidays is an ``aspect[ ] of religious
observance and practice'' and is therefore protected by Title VII. 42
U.S.C. 2000e, 2000e-2. Examples of reasonable accommodations for that
practice could include a change of job assignments or lateral transfer
to a position whose schedule does not conflict with the employee's
religious holidays, 29 CFR 1605.2(d)(1)(iii); a voluntary work schedule
swap with another employee, id. Sec. 1065.2(d)(1)(i); or a flexible
scheduling scheme that allows employees to arrive or leave early, use
floating or optional holidays for religious holidays, or make up time
lost on another day, id. Sec. 1065.2(d)(1)(ii). Again, the federal
government has demonstrated reasonable accommodation through its own
practice: Congress has created a flexible scheduling scheme for federal
employees, which allows employees to take compensatory time off for
religious observances, 5 U.S.C. 5550a, and the Clinton Guidelines make
clear that ``[a]n agency must adjust work schedules to accommodate an
employee's religious observance--for example, Sabbath or religious
holiday observance--if an adequate substitute is available, or if the
employee's absence would not otherwise impose an undue burden on the
agency,'' Clinton Guidelines Sec. 1(C). If an employer regularly
permits accommodation in work scheduling for secular conflicts and
denies such accommodation for religious conflicts, ``such an
arrangement would display a discrimination against religious practices
that is the antithesis of reasonableness.'' Philbrook, 479 U.S. at 71.
Except for certain exceptions discussed in the next section, Title
VII's protection against disparate treatment, 42 U.S.C. 2000e-2(a)(1),
is implicated any time religious observance or practice is a motivating
factor in an employer's covered decision. Abercrombie, 135 S. Ct. at
2033. That is true even when an employer acts without actual knowledge
of the need for an accommodation from a neutral policy but with ``an
unsubstantiated suspicion'' of the same. Id. at 2034.
ii. Protections for Religious Employers
Congress has acknowledged, however, that religion sometimes is an
appropriate factor in employment decisions, and it has limited Title
VII's scope accordingly. Thus, for example, where religion ``is a bona
fide occupational qualification reasonably necessary to the normal
operation of [a] particular business or enterprise,'' employers may
hire and employ individuals based on their religion. 42 U.S.C. 2000e-
2(e)(1). Likewise, where educational institutions are ``owned,
supported, controlled or managed, [in whole or in substantial part] by
a particular religion or by a particular religious corporation,
association, or society'' or direct their curriculum ``toward the
propagation of a particular religion,'' such institutions may hire and
employ individuals of a particular religion. Id. And ``a religious
corporation, association, educational institution, or society'' may
employ ``individuals of a particular religion to perform work connected
with the carrying on by such corporation, association, educational
institution, or society of its activities.'' Id. Sec. 2000e-1(a);
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U.S. 327, 335-36 (1987).
Because Title VII defines ``religion'' broadly to include ``all
aspects of religious observance and practice, as well as belief,'' 42
U.S.C. 2000e(j), these exemptions include decisions ``to employ only
persons whose beliefs and conduct are consistent with the employer's
religious precepts.'' Little v. Wuerl, 929 F.2d 944, 951 (3d Cir.
1991); see also Killinger v. Samford Univ., 113 F.3d 196, 198-200 (11th
Cir. 1997). For example, in Little, the Third Circuit held that the
exemption applied to a Catholic school's decision to fire a divorced
Protestant teacher who, though having agreed to abide by a code of
conduct shaped by the doctrines of the Catholic Church, married a
baptized Catholic without first pursuing the official annulment process
of the Church. 929 F.2d at 946, 951.
Section 702 broadly exempts from its reach religious corporations,
associations, educational institutions, and societies. The statute's
terms do not limit this exemption to non-profit organizations, to
organizations that carry on only religious activities, or to
organizations established by a church or formally affiliated therewith.
See Civil Rights Act of 1964, Sec. 702(a), codified at 42 U.S.C.
2000e-1(a); see also Hobby Lobby, 134 S. Ct. at 2773-74; Corp. of
Presiding Bishop, 483 U.S. at 335-36. The exemption applies whenever
the organization is ``religious,'' which means that it is organized for
religious purposes and engages in activity consistent with, and in
furtherance of, such purposes. Br. of Amicus Curiae the U.S. Supp.
Appellee, Spencer v. World Vision, Inc., No. 08-35532 (9th Cir. 2008).
Thus, the exemption applies not just to religious denominations and
houses of worship, but to religious colleges, charitable organizations
like the Salvation Army and World Vision International, and many more.
In that way, it is consistent with other broad protections for
religious entities in federal law, including, for example, the
exemption of religious entities from many of the requirements under the
Americans with Disabilities Act. See 28 CFR app. C; 56 Fed. Reg. 35544,
35554 (July 26, 1991) (explaining that ``[t]he ADA's exemption of
religious organizations and religious entities controlled by religious
organizations is very broad, encompassing a wide variety of
situations'').
In addition to these explicit exemptions, religious organizations
may be entitled to additional exemptions from discrimination laws. See,
e.g., Hosanna-Tabor, 565 U.S. at 180, 188-90. For example, a religious
organization might conclude that it cannot employ an individual who
fails faithfully to adhere to the organization's religious tenets,
either because doing so might itself inhibit the organization's
exercise of religion or because it might dilute an expressive message.
Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 649-55 (2000). Both
constitutional and statutory issues arise when governments seek to
regulate such decisions.
As a constitutional matter, religious organizations' decisions are
protected from governmental interference to the extent they relate to
ecclesiastical or internal governance matters. Hosanna-Tabor, 565 U.S.
at 180, 188-90. It is beyond dispute that ``it would violate the First
Amendment for courts to apply [employment discrimination] laws to
compel the ordination of women by the Catholic Church or by an Orthodox
Jewish seminary.'' Id. at 188. The same is true for other employees who
``minister to the faithful,'' including those who are not themselves
the head of the religious congregation and who are not engaged solely
in religious functions. Id. at 188, 190, 194-95; see also Br. of Amicus
Curiae the U.S. Supp. Appellee, Spencer v. World Vision, Inc., No. 08-
35532 (9th Cir. 2008) (noting that the First Amendment protects ``the
right to employ staff who share the religious organization's religious
beliefs'').
Even if a particular associational decision could be construed to
fall outside this protection, the government would likely still have to
show that any interference with the religious organization's
associational rights is justified under strict scrutiny. See Roberts v.
U.S. Jaycees, 468 U.S. 609, 623 (1984) (infringements on expressive
association are subject to strict
[[Page 49678]]
scrutiny); Smith, 494 U.S. at 882 (``[I]t is easy to envision a case in
which a challenge on freedom of association grounds would likewise be
reinforced by Free Exercise Clause concerns.''). The government may be
able to meet that standard with respect to race discrimination, see Bob
Jones Univ., 461 U.S. at 604, but may not be able to with respect to
other forms of discrimination. For example, at least one court has held
that forced inclusion of women into a mosque's religious men's meeting
would violate the freedom of expressive association. Donaldson v.
Farrakhan, 762 N.E.2d 835, 840-41 (Mass. 2002). The Supreme Court has
also held that the government's interest in addressing sexual-
orientation discrimination is not sufficiently compelling to justify an
infringement on the expressive association rights of a private
organization. Boy Scouts, 530 U.S. at 659.
As a statutory matter, RFRA too might require an exemption or
accommodation for religious organizations from antidiscrimination laws.
For example, ``prohibiting religious organizations from hiring only
coreligionists can `impose a significant burden on their exercise of
religion, even as applied to employees in programs that must, by law,
refrain from specifically religious activities.''' Application of the
Religious Freedom Restoration Act to the Award of a Grant Pursuant to
the Juvenile Justice and Delinquency Prevention Act, 31 Op. O.L.C. 162,
172 (2007) (quoting Direct Aid to Faith-Based Organizations Under the
Charitable Choice Provisions of the Community Solutions Act of 2001, 25
Op. O.L.C. 129, 132 (2001)); see also Corp. of Presiding Bishop, 483
U.S. at 336 (noting that it would be ``a significant burden on a
religious organization to require it, on pain of substantial liability,
to predict which of its activities a secular court w[ould] consider
religious'' in applying a nondiscrimination provision that applied only
to secular, but not religious, activities). If an organization
establishes the existence of such a burden, the government must
establish that imposing such burden on the organization is the least
restrictive means of achieving a compelling governmental interest. That
is a demanding standard and thus, even where Congress has not expressly
exempted religious organizations from its antidiscrimination laws--as
it has in other contexts, see, e.g., 42 U.S.C. 3607 (Fair Housing Act),
12187 (Americans with Disabilities Act)--RFRA might require such an
exemption.
2. Government Programs
Protections for religious organizations likewise exist in
government contracts, grants, and other programs. Recognizing that
religious organizations can make important contributions to government
programs, see, e.g., 22 U.S.C. 7601(19), Congress has expressly
permitted religious organizations to participate in numerous such
programs on an equal basis with secular organizations, see, e.g., 42
U.S.C. 290kk-1, 300x-65 604a, 629i. Where Congress has not expressly so
provided, the President has made clear that ``[t]he Nation's social
service capacity will benefit if all eligible organizations, including
faith-based and other neighborhood organizations, are able to compete
on an equal footing for Federal financial assistance used to support
social service programs.'' Exec. Order No. 13559, Sec. 1, 75 Fed. Reg.
71319, 71319 (Nov. 17, 2010) (amending Exec. Order No. 13279, 67 Fed.
Reg. 77141 (2002)). To that end, no organization may be ``discriminated
against on the basis of religion or religious belief in the
administration or distribution of Federal financial assistance under
social service programs.'' Id. ``Organizations that engage in
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization)'' are eligible to participate in such programs, so
long as they conduct such activities outside of the programs directly
funded by the federal government and at a separate time and location.
Id.
The President has assured religious organizations that they are
``eligible to compete for Federal financial assistance used to support
social service programs and to participate fully in the social services
programs supported with Federal financial assistance without impairing
their independence, autonomy, expression outside the programs in
question, or religious character.'' See id.; see also 42 U.S.C. 290kk-
1(e) (similar statutory assurance). Religious organizations that apply
for or participate in such programs may continue to carry out their
mission, ``including the definition, development, practice, and
expression of . . . religious beliefs,'' so long as they do not use any
``direct Federal financial assistance'' received ``to support or engage
in any explicitly religious activities'' such as worship, religious
instruction, or proselytization. Exec. Order No. 13559, Sec. 1. They
may also ``use their facilities to provide social services supported
with Federal financial assistance, without removing or altering
religious art, icons, scriptures, or other symbols from these
facilities,'' and they may continue to ``retain religious terms'' in
their names, select ``board members on a religious basis, and include
religious references in . . . mission statements and other chartering
or governing documents.'' Id.
With respect to government contracts in particular, Executive Order
13279, 67 Fed. Reg. 77141 (Dec. 12, 2002), confirms that the
independence and autonomy promised to religious organizations include
independence and autonomy in religious hiring. Specifically, it
provides that the employment nondiscrimination requirements in Section
202 of Executive Order 11246, which normally apply to government
contracts, do ``not apply to a Government contractor or subcontractor
that is a religious corporation, association, educational institution,
or society, with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on by
such corporation, association, educational institution, or society of
its activities.'' Exec. Order No. 13279, Sec. 4, amending Exec. Order
No. 11246, Sec. 204(c), 30 Fed. Reg. 12319, 12935 (Sept. 24, 1965).
Because the religious hiring protection in Executive Order 13279
parallels the Section 702 exemption in Title VII, it should be
interpreted to protect the decision ``to employ only persons whose
beliefs and conduct are consistent with the employer's religious
precepts.'' Little, 929 F.2d at 951. That parallel interpretation is
consistent with the Supreme Court's repeated counsel that the decision
to borrow statutory text in a new statute is ``strong indication that
the two statutes should be interpreted pari passu.'' Northcross v. Bd.
of Educ. of Memphis City Sch., 412 U.S. 427 (1973) (per curiam); see
also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich L.P.A., 559
U.S. 573, 590 (2010). It is also consistent with the Executive Order's
own usage of discrimination on the basis of ``religion'' as something
distinct and more expansive than discrimination on the basis of
``religious belief.'' See, e.g., Exec. Order No. 13279, Sec. 2(c)
(``No organization should be discriminated against on the basis of
religion or religious belief . . . '' (emphasis added)); id. Sec. 2(d)
(``All organizations that receive Federal financial assistance under
social services programs should be prohibited from discriminating
against beneficiaries or potential beneficiaries of the social services
programs on the basis of religion or religious belief. Accordingly,
organizations, in providing services
[[Page 49679]]
supported in whole or in part with Federal financial assistance, and in
their outreach activities related to such services, should not be
allowed to discriminate against current or prospective program
beneficiaries on the basis of religion, a religious belief, a refusal
to hold a religious belief, or a refusal to actively participate in a
religious practice.''). Indeed, because the Executive Order uses ``on
the basis of religion or religious belief'' in both the provision
prohibiting discrimination against religious organizations and the
provision prohibiting discrimination ``against beneficiaries or
potential beneficiaries,'' a narrow interpretation of the protection
for religious organizations' hiring decisions would lead to a narrow
protection for beneficiaries of programs served by such organizations.
See id. Sec. Sec. 2(c), (d). It would also lead to inconsistencies in
the treatment of religious hiring across government programs, as some
program-specific statutes and regulations expressly confirm that ``[a]
religious organization's exemption provided under section 2000e-1 of
this title regarding employment practices shall not be affected by its
participation, or receipt of funds from, a designated program.'' 42
U.S.C. 290kk-1(e); see also 6 CFR Sec. 19.9 (same).
Even absent the Executive Order, however, RFRA would limit the
extent to which the government could condition participation in a
federal grant or contract program on a religious organization's
effective relinquishment of its Section 702 exemption. RFRA applies to
all government conduct, not just to legislation or regulation, see 42
U.S.C. 2000bb-1, and the Office of Legal Counsel has determined that
application of a religious nondiscrimination law to the hiring
decisions of a religious organization can impose a substantial burden
on the exercise of religion. Application of the Religious Freedom
Restoration Act to the Award of a Grant, 31 Op. O.L.C. at 172; Direct
Aid to Faith-Based Organizations, 25 Op. O.L.C. at 132. Given
Congress's ``recognition that religious discrimination in employment is
permissible in some circumstances,'' the government will not ordinarily
be able to assert a compelling interest in prohibiting that conduct as
a general condition of a religious organization's receipt of any
particular government grant or contract. Application of the Religious
Freedom Restoration Act to the Award of a Grant, 31 Op. of O.L.C. at
186. The government will also bear a heavy burden to establish that
requiring a particular contractor or grantee effectively to relinquish
its Section 702 exemption is the least restrictive means of achieving a
compelling governmental interest. See 42 U.S.C. 2000bb-1.
The First Amendment also ``supplies a limit on Congress' ability to
place conditions on the receipt of funds.'' Agency for Int'l Dev. v.
All. for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2328 (2013) (internal
quotation marks omitted)). Although Congress may specify the activities
that it wants to subsidize, it may not ``seek to leverage funding'' to
regulate constitutionally protected conduct ``outside the contours of
the program itself.'' See id. Thus, if a condition on participation in
a government program--including eligibility for receipt of federally
backed student loans--would interfere with a religious organization's
constitutionally protected rights, see, e.g., Hosanna-Tabor, 565 U.S.
at 188-89, that condition could raise concerns under the
``unconstitutional conditions'' doctrine, see All. for Open Soc'y
Int'l, Inc., 133 S. Ct. at 2328.
Finally, Congress has provided an additional statutory protection
for educational institutions controlled by religious organizations who
provide education programs or activities receiving federal financial
assistance. Such institutions are exempt from Title IX's prohibition on
sex discrimination in those programs and activities where that
prohibition ``would not be consistent with the religious tenets of such
organization[s].'' 20 U.S.C. 1681(a)(3). Although eligible institutions
may ``claim the exemption'' in advance by ``submitting in writing to
the Assistant Secretary a statement by the highest ranking official of
the institution, identifying the provisions . . . [that] conflict with
a specific tenet of the religious organization,'' 34 CFR Sec.
106.12(b), they are not required to do so to have the benefit of it,
see 20 U.S.C. 1681.
3. Government Mandates
Congress has undertaken many similar efforts to accommodate
religious adherents in diverse areas of federal law. For example, it
has exempted individuals who, ``by reason of religious training and
belief,'' are conscientiously opposed to war from training and service
in the armed forces of the United States. 50 U.S.C. 3806(j). It has
exempted ``ritual slaughter and the handling or other preparation of
livestock for ritual slaughter'' from federal regulations governing
methods of animal slaughter. 7 U.S.C. 1906. It has exempted ``private
secondary school[s] that maintain [ ] a religious objection to service
in the Armed Forces'' from being required to provide military
recruiters with access to student recruiting information. 20 U.S.C.
7908. It has exempted federal employees and contractors with religious
objections to the death penalty from being required to ``be in
attendance at or to participate in any prosecution or execution.'' 18
U.S.C. 3597(b). It has allowed individuals with religious objections to
certain forms of medical treatment to opt out of such treatment. See,
e.g., 33 U.S.C. 907(k); 42 U.S.C. 290bb-36(f). It has created tax
accommodations for members of religious faiths conscientiously opposed
to acceptance of the benefits of any private or public insurance, see,
e.g., 26 U.S.C. 1402(g), 3127, and for members of religious orders
required to take a vow of poverty, see, e.g., 26 U.S.C. 3121(r).
Congress has taken special care with respect to programs touching
on abortion, sterilization, and other procedures that may raise
religious conscience objections. For example, it has prohibited
entities receiving certain federal funds for health service programs or
research activities from requiring individuals to participate in such
program or activity contrary to their religious beliefs. 42 U.S.C.
300a-7(d), (e). It has prohibited discrimination against health care
professionals and entities that refuse to undergo, require, or provide
training in the performance of induced abortions; to provide such
abortions; or to refer for such abortions, and it will deem accredited
any health care professional or entity denied accreditation based on
such actions. Id. Sec. 238n(a), (b). It has also made clear that
receipt of certain federal funds does not require an individual ``to
perform or assist in the performance of any sterilization procedure or
abortion if [doing so] would be contrary to his religious beliefs or
moral convictions'' nor an entity to ``make its facilities available
for the performance of'' those procedures if such performance ``is
prohibited by the entity on the basis of religious beliefs or moral
convictions,'' nor an entity to ``provide any personnel for the
performance or assistance in the performance of'' such procedures if
such performance or assistance ``would be contrary to the religious
beliefs or moral convictions of such personnel.'' Id. Sec. 300a-7(b).
Finally, no ``qualified health plan[s] offered through an Exchange''
may discriminate against any health care professional or entity that
refuses to ``provide, pay for, provide coverage of, or refer for
abortions,'' Sec. 18023(b)(4); see also Consolidated Appropriations
Act, 2016, Public Law
[[Page 49680]]
114-113, div. H, Sec. 507(d), 129 Stat. 2242, 2649 (Dec. 18, 2015).
Congress has also been particularly solicitous of the religious
freedom of American Indians. In 1978, Congress declared it the ``policy
of the United States to protect and preserve for American Indians their
inherent right of freedom to believe, express, and exercise the
traditional religions of the American Indian, Eskimo, Aleut, and Native
Hawaiians, including but not limited to access to sites, use and
possession of sacred objects, and the freedom to worship through
ceremonials and traditional rites.'' 42 U.S.C. 1996. Consistent with
that policy, it has passed numerous statutes to protect American
Indians' right of access for religious purposes to national park lands,
Scenic Area lands, and lands held in trust by the United States. See,
e.g., 16 U.S.C. 228i(b), 410aaa-75(a), 460uu-47, 543f, 698v-11(b)(11).
It has specifically sought to preserve lands of religious significance
and has required notification to American Indians of any possible harm
to or destruction of such lands. Id. Sec. 470cc. Finally, it has
provided statutory exemptions for American Indians' use of otherwise
regulated articles such as bald eagle feathers and peyote as part of
traditional religious practice. Id. Sec. Sec. 668a, 4305(d); 42 U.S.C.
1996a.
The depth and breadth of constitutional and statutory protections
for religious observance and practice in America confirm the enduring
importance of religious freedom to the United States. They also provide
clear guidance for all those charged with enforcing federal law: The
free exercise of religion is not limited to a right to hold personal
religious beliefs or even to worship in a sacred place. It encompasses
all aspects of religious observance and practice. To the greatest
extent practicable and permitted by law, such religious observance and
practice should be reasonably accommodated in all government activity,
including employment, contracting, and programming. See Zorach v.
Clauson, 343 U.S. 306, 314 (1952) (``[Government] follows the best of
our traditions . . . [when it] respects the religious nature of our
people and accommodates the public service to their spiritual
needs.'').
[FR Doc. 2017-23269 Filed 10-25-17; 8:45 am]
BILLING CODE 4410-13-P; 4410-BB-P