U.S. Issues Religious Freedom Memo Giving Leeway in Who to Hire

Attorney General Jeff Sessions advised federal agencies to follow 20 principles of religious freedom, including a recognition that religious employers can discriminate in hiring, as he elaborated on an executive order President Donald Trump signed in May.

The guidance issued by Sessions on Friday says “religious organizations may choose to employ only persons whose beliefs and conduct are consistent with the organizations’ religious precepts.”

Sessions set out 20 principles based on the Justice Department’s interpretation of existing laws, such as the 1993 Religious Freedom Restoration Act. The document supports the positions of religious and social conservatives who were a key part of Trump’s base of support in last year’s election.

“Except in the narrowest of circumstances, no one should be forced to choose between living out his or her faith and complying with the law,” Sessions wrote in the memorandum issued to all agencies. “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 move came as the Trump administration proposed giving employers broad flexibility to decide against covering birth control in their health insurance plans, weakening a requirement put in place by President Barack Obama’s administration in its interpretation of the Affordable Care Act.

Contraceptive Coverage

Sessions’ memo says the Department of Health and Human Services may not “second-guess the determination of a religious employer that providing contraceptive coverage to its employees would make the employer complicit in wrongdoing.”

The Obama administration required employers to cover birth control and an array of other preventive health-services with no out-of-pocket costs. The administration had allowed some religious organizations to opt out of the contraceptive requirement, but the religious groups said that the exemption process didn’t go far enough.

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Trump’s executive order also directed the Internal Revenue Service to use its discretion in enforcing a decades-old law known as the Johnson Amendment, which prevents religious leaders from endorsing candidates from the pulpit while retaining their nonprofit status. Religious leaders have long complained that the provision restricts their free speech.

“We are giving our churches their voices back,” Trump said at the time in a Rose Garden ceremony. “No one should be censoring sermons or targeting pastors.”

The Sessions memo says the IRS may not enforce the Johnson Amendment “against a religious non-profit organization under circumstances in which it would not enforce the amendment against a secular non-profit organization.”

General Principles

The principles issued Friday are general, with statements such as “the free exercise of religion includes the right to act or not to act in accordance with one’s religious beliefs” and the “government may not interfere with the autonomy of a religious organization.”