Hostile reaction to DOJ religious liberty task force

Today Attorney General Jeff Sessions held a press conference announcing the Justice Department's religious liberty task force. The summary of Sessions's statement provided on Good Morning America's Facebook page did not seem at all alarming -- in fact it seemed welcome and overdue:

Sessions says the task force will "help the Department fully implement our religious liberty guidance," including "making sure our employees know their duties to accommodate people of faith."

Nor was the 90-second snippet of a press conference that GMA posted anything that seemed controversial.

And yet a Facebook friend, not usually one to post about politics, posted the link with the comment, "I can't believe this is constitutional." This friend's post received four "angry face" reactions. On the original GMA post, there are nearly 3,000 angry reactions, about 700 thumbs-up, and just over 600 expressions of astonishment. Most of the comments on the GMA post appear to be some ranty variation of "Doesn't he know there's supposed to be separation of church and state!"

The Constitution does not require the Federal Government to be hostile to religion or religious people. In fact, it requires the government to avoid burdening the free exercise of religion. Our nation was founded and settled by people (mainly various sorts of Christians) who wanted a place where they could live out their religious beliefs without suffering the persecution and restrictions they faced back in Europe.

For example, in England and Ireland, under the Test Acts and Penal Laws, someone who was not an Anglican was banned from holding public office, serving as an attorney, graduating from Oxford or Cambridge, or even voting. Worship services of religious dissenters could not be held in cities and dissenting preachers might be thrown into prison.

It would be a betrayal of the Pilgrims, Quakers, Catholics, Scots-Irish Presbyterians, Baptists, Amish, and other religious people fleeing persecution to create this country if America turns into a country where once again the Government can impose fines, jail time, or discriminatory restrictions on living according to your religious beliefs.

Here is a link to the full text of Attorney General's speech. Sessions began by describing the importance of religious liberty to those who settled America and those who framed its government:

Freedom of religious is indeed our "first freedom"--being the first listed right of our First Amendment. This has been a core American principle from the beginning. It is one of the reasons that this country was settled in the first place.

The promise of freedom of conscience brought the Pilgrims to Plymouth, the Catholics to Maryland, the Quakers to Pennsylvania, the Scot-Presbyterians to the middle colonies, and Roger Williams to Rhode Island. Each one of these groups and others knew what it was like to be hated, persecuted, outnumbered, and discriminated against. Each one knew what it was like to have a majority try to force them to deny their natural right to practice the faith they held dear.

Our Founders gave religious expression a double protection in the First Amendment. Not only do we possess freedom to exercise our beliefs but we also enjoy the freedom of speech. Our Founders' understanding of and commitment to religious freedom was truly brilliant as well as historic. It arose in large part from the principals delineated in the Virginia Statute for Religious Freedom--and its effective advocates: Madison and Jefferson. These guys were ferocious. This weekend, I was rereading Gary Wills' fabulous book, Head and Heart, in which he quotes extensively from Jefferson's Statute, as he refers to it. I commend all of it to you; but one line stood out in particular to me, "That almighty God hath created the mind free, and manifested His supreme will that free it shall remain, by making it altogether insusceptible of restraint."

Of course, this is entirely consistent with another of my favorite Jefferson quotes that you will find at his memorial just across the mall from where we are today: "For I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man." This is what our Founders believed. They clearly recognized that an individual's relationship to God is a natural right and precedes the existence of the state, and is not subject to state control.

These concepts were placed into our Constitution and laws and formed a national consensus that has greatly militated against religious hostility and violence--and has helped us to this day to be one of the world's most diverse religious people.

There can be no doubt that we are stronger as a nation because of the contribution of religious Americans. Every day across America, they feed the hungry, shelter the homeless, educate our young people, and care for the sick. They do so not because the government tells them to, but because they want to. They do these things because of their faith. Their faith provides something the state can never provide--meaning and purpose and joy in their life.

(NOTE: The transcript has a paragraph break after each sentence, arranged no doubt for convenience in delivering a speech. For the sake of readability I've provided paragraph breaks where they make sense.)

Sessions then described current threats to free exercise of religion and actions that the Department of Justice has taken to enforce the laws protecting them:

But in recent years, the cultural climate in this country--and in the West more generally--has become less hospitable to people of faith. Many Americans have felt that their freedom to practice their faith has been under attack. And it's easy to see why. We've seen nuns ordered to buy contraceptives. We've seen U.S. Senators ask judicial and executive branch nominees about dogma--even though the Constitution explicitly forbids a religious test for public office. We've all seen the ordeal faced so bravely by Jack Phillips.

Americans from a wide variety of backgrounds are concerned about what this changing cultural climate means for the future of religious liberty in this country....

The Department of Justice has settled 24 civil cases with 90 plaintiffs regarding the previous administration's wrong application of the contraception mandate to objecting religious employers. Last month, a district court in Colorado issued a permanent injunction in the case involving the Little Sisters of the Poor, a group of nuns who serve the elderly poor. This is a permanent injunction and a major victory for the Little Sisters of the Poor and religious freedom. The government has no business telling the Little Sisters that they must provide an insurance policy that violates their sincere religious beliefs....

Since January 2017, we have obtained 11 indictments and seven convictions in cases involving arson or other attacks or threats against houses of worship. Our Civil Rights Division has also obtained 12 indictments in other attacks or threats against people because of their religion.... Three weeks ago, we obtained a jury verdict against a man who set fire to a mosque in Texas and sentenced for a man from Missouri for threatening to kill members of a mosque....

In January, we filed a brief in a Montana court to defend parents who claim that the state barred their children from a private school scholarship program because they attend a religious school. We also filed an amicus brief on behalf of the Archdiocese of Washington, D.C., which was refused advertising space for having a religious message--including "joy to the world" on Merry Christmas....

When I was in the Senate, we passed a law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. Under RLUIPA, the Department of Justice can file a civil action in court when religious groups are discriminated against in zoning laws. Under my tenure as Attorney General, we have not hesitated to use this tool when necessary. In June, we filed suit against a town in New Jersey that had refused over and over again--for eight years--to let an Orthodox Jewish congregation buy land for a synagogue. And just last week we filed a brief in federal court supporting the case of a Hindu temple in Maryland that claimed to have suffered discrimination in its attempts to purchase land.

Sessions provided a brief description of the guidance memo issued earlier:

Soon after taking office, President Trump directed me to issue explicit legal guidance for all executive agencies on how to apply the religious liberty protections in federal law. Our team embraced that challenge. I issued that guidance in October, and it lays out 20 fundamental principles for the Executive Branch to follow. Those include the principle that free exercise means a right to act--or to abstain from action. They include the principle that government shouldn't impugn people's motives or beliefs.

We don't give up our rights when we go to work, start a business, talk about politics, or interact with the government. We don't give up our rights when we assemble or join together. We have religious freedom as individuals and as groups. In short, we have not only the freedom to worship--but the right to exercise our faith. The Constitution's protections don't end at the parish parking lot nor can our freedoms be confined to our basements.

Under this administration, the federal government is not just reacting--we are actively seeking, carefully, thoughtfully and lawfully, to accommodate people of faith. Religious Americans are no longer an afterthought. We will take potential burdens on one's conscience into consideration before we issue regulations or new policies. And this Department of Justice is going to court across America to defend the rights of people of faith.

Finally, he announced formation of a religious liberty task force within the DOJ to ensure that the laws which have already been approved by Congress and various presidents are enforced.

The Task Force will help the Department fully implement our religious liberty guidance by ensuring that all Justice Department components are upholding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations. That includes making sure that our employees know their duties to accommodate people of faith.

As the people in this room know, you have to practice what you preach. We are also going to remain in contact with religious groups across America to ensure that their rights are being protected. We have been holding listening sessions and we will continue to host them in the coming weeks.

This administration is animated by that same American view that has led us for 242 years: that every American has a right to believe, worship, and exercise their faith in the public square. This approach has served this country well. We are perhaps the most religiously developed nation in the world and can take pride in respecting all people as they fully exercise their faiths. It is clear that these policies have furthered peace, prosperity, freedom, lawfulness, and clarity. As our nation grows older, we must not let it depart from this magnificent tradition.

Here is Sessions's 25-page memo, "Federal Law Protections for Religious Liberty". It begins with 20 principles, each with a paragraph of elaboration. There follows specific guidance for the various roles a federal agency may play: as an employer, as a rulemaker, as an enforcer of Federal law, as an issuer of contracts or grants. The last 17 pages are an appendix of technical legal details, reciting relevant Federal law and Supreme Court decisions that must govern Federal agencies.

An accompanying two-page directive explains how the DOJ officials who report to the Attorney General are to apply the principles set out in the guidance memo: To incorporate the principles into the DOJ's own employment, rulemaking, enforcement, contracting, and grant-issuing policies; to correct course in DOJ litigation where the previous administration acted contrary to these principles; to apply the principles when issuing legal guidance to other agencies of the Executive Branch; to ensure that new rules issued by other agencies and referred to the DOJ's Office of Legal Policy are consistent with Federal religious liberty laws; and to require all DOJ components, including U. S. Attorney offices, to confer with the Associate Attorney General on "all issues arising in litigation, operations, grants, or other aspects of the Department's work that appear to raise novel, material questions" regarding religious liberty law.

So why the hostile public reaction to what appears to be a firm commitment to upholding the Constitution and laws of the United States regarding religious liberty?

I suspect part of it is that those who have chosen a life of sexual immorality are worried that someday they may encounter someone who is less than enthusiastic about their moral choices. While religious liberty is enshrined in our Bill of Rights and Federal law, sexual license is not, and yet many Americans regard sexual activity as the only source of transcendence, and they consider universal approval of their sexual proclivities a fundamental right.

Their solution to this, articulated by former President Obama and presidential candidate Hillary Clinton, is to reduce the robust protection for freedom of religion to a mere "freedom of worship." So you can think your thoughts privately or discuss them within the walls of your church, but you must set all your religious beliefs aside when you speak in public, when you go to work, when you run your business, when you interact with the Government. This is the sort of bare toleration that the settlers of America endured in the old country under the Test Acts and Penal Laws, not the robust freedom of religion that they sought when they crossed the Atlantic Ocean to the New World.

It should worry religious Americans that so many of our relatives, friends, and co-workers are angered that the Federal government intends to protect our long-standing religious liberties. But we ought to thank God that, at least for the next two-and-a-half years, the U. S. Department of Justice will be doing just that.

MORE: In 2015, Oklahoma Senator James Lankford expressed concerns about the Obama administration's emphasis on "freedom of worship" over "freedom of religion."