Two sets of announcements by the Department of Justice and the Department of Health and Human Services issued Friday both promise to broaden religious freedom protections in the United States....
"Robert George, a professor of constitutional law at Princeton University and visiting professor at Harvard University, explained the implications of these two announcements....
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'....I see much greater
value in the guidance that has been issued today than in the executive
order on religious freedom from a few months ago....
'The administration goes clearly on the record and instructs all relevant agencies of the government that the Religious Freedom Restoration Act applies even where a religious entity seeks an exemption from a requirement that the entity confer benefits on third parties. This is a big point in dispute between the two sides in the debate over religious freedom. The administration comes down squarely in favor of what I believe is the correct view.
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'Another key point the guidance makes clear is that religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employer's religious precepts.
'I interpret that to mean that an employer may, if the religious employer chooses for religious reasons, choose to employ only members of its own faith. But it also means that the employer, if it chooses on the basis of its religious faith, can choose to hire people who are not of the same faith, but limit those employment opportunities to prospective employees whose conduct is in line with the moral teachings of the faith....
'It means, for example, that a Catholic school could say, “We don't insist on hiring only Catholics to be teachers in the school. Perhaps we insist on Catholics as teachers of religion, since it's a Catholic school, but we are happy to hire a math teacher, a social studies teacher, or a literature teacher who is Hindu or Protestant or Jewish or Mormon or Muslim.”
'But, even if they choose to do that, [a Catholic employer] can choose to employ only people from their own faith or other faiths who live their lives in line with Catholic moral teaching....
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'I do have a question about point 20 [of the memo’s 20 points for consideration]. It has to do with the first word – "generally." The point says, "generally, the federal government may not condition federal grants or contracts on the religious organization altering its religious character beliefs or activities."
'I don't know what the exceptions are. I assume "generally" is meant to state a rule, but also to contemplate that there are exceptions to the rule. I think we need clearer guidance from the administration and from the Justice Department about the conditions under which the federal government may legitimately condition federal grants or contracts on a religious organization altering its religious character, beliefs, or activities.
'Since it's presented as a conditional norm, not as an absolute norm, we really need some clarity about what the conditions are, or what the exceptions are. And I cannot find that clarity in in the material....
'the preparatory material for the guidance says that this guidance does not resolve any specific cases. It offers guidance on existing protections in religious liberty and federal law. Of course there are cases that are pending. So the proof will be in the pudding.
'We need to know whether government officials will interpret these guidance points in ways that will cause them to relent in attempting to limit religious freedom....
'This guidance makes very clear that this administration's position is that freedom of religion extends to religious organizations and not just individuals, so that's good. It's not new, but it's good....
[With regard to the HHS mandate] 'I would defer to what the lawyers [at the Becket Fund for Religious Freedom] have said, because it's their case and they have been completely on top of this. They're excellent lawyers. I'm a member of the board of the Becket Fund and know them well....
'I will say this though: I believe an authentic, faithful, honest interpretation of these guidelines by the government officials who have responsibility for that litigation would cause them to basically concede to the Little Sisters; to acknowledge that to the extent that the regulations purport to impose upon religious organizations a requirement that they provide, or in any way implicate themselves in providing, contraceptives or abortifacient drugs in violation of religious teaching, that the government has no right to do that.
'The regulations cannot be enforced against those religious entities. But again, the proof will be in the pudding.
'We'll see whether the public officials to whom this guidance is addressed apply the guidance in that way.
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- '....Many people do not derive their moral convictions from a religion,
and many religious people believe that there are moral truths that can
be known by the disciplined application of reason, even apart from what
might, in addition, be known by revelation or the teachings of a church
or other religious body.
'In other words, many people believe in what has traditionally been called “natural law.”
'It appears that in this guidance, it's acknowledged that non-religiously based, or not necessarily religiously based, moral reflection deserves conscience protection in the same way that religiously based moral convictions deserve conscience protection....
'Probably the most important thing to remind people is that the guidance or principles are designed to guide public officials, but they don't dictate results. The same is true of the Religious Freedom Restoration Act, by the way....
'So while I welcome, and I think all friends of religious liberty and of conscience should welcome, this guidance, we need to hold off cheering until we see how the guidance is actually interpreted and applied by public officials. Until we see the guidance actually applied to concrete disputes we won't know whether to cheer....
'But I do believe in the principles that have been endorsed in the guidance documents, and I think that if they are faithfully and authentically interpreted, it will mean a very desirable set of protections for religious freedom – protections that are now many years overdue due to the assaults on religious freedom during the Obama administration."
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