On October 6, 2017, U.S. Attorney General Jeff Sessions released two memos for all component heads and U.S. attorneys, per President Trump’s instruction in Executive Order 13798, regarding federal law and religious liberty. One memo, Federal Law Protections for Religious Liberty, provides 20 principles of religious liberty and an interpretive guidance of federal law protections for religious liberty. The second memo, Implementation of Memorandum on Federal Law Protections for Religious Liberty, orders the implementation of the interpretations by all attorneys within the Department of Justice.
Among the 20 principles in the memo on protections for religious liberty is the assertion that religious liberty is a fundamental right and that the free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs, which extends to both persons and organizations. Regarding the workplace, the principles state:
“Principle 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.”