Also significant, the guidance explicitly affirms the right of religious organizations to “employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.” This is a victory for faith-based employers, among them Catholic schools who have faced opposition for asking employees to sign codes of conduct agreeing to abide by Catholic teaching on issues such as sexuality.
Today’s guidance also confirms that government cannot interfere with the autonomy of religious organizations. This idea was reinforced by the Supreme Court in Hosanna-Tabor v. EEOC – a rare unanimous ruling in 2012 in which the court upheld the “ministerial exception” that allows religious organizations to hire and fire ministers without interference from the government.
Finally, the document released by Sessions says that religious organizations must have equal footing in applying for federal aid or grant programs – they may not be denied participation in these programs when the money is going toward activities that are not explicitly religious in nature.
This has been an important issue in the weeks after Hurricane Harvey with a group of Houston churches suing the Federal Emergency Management Agency, claiming they had been denied disaster relief grants due to their religious status.
The principle was also at play earlier this year, when the Supreme Court ruled in favor of a Lutheran church that was seeking to make safety improvements on its playground through a state reimbursement program. The church had initially been turned away because of its religious affiliation.
Now that the attorney general has issued the guidance, it is up to each agency and department to implement the principles as they make employment decisions, develop regulations, administer programs and write up contracts and grants.
The fight over the proper role of religious liberty in the nation is far from over, however. The document has already been criticized by its opponents as oppressive to women and the LGBT community.
The broad effect of the guidance will continue to unfold in the coming months. Challenges to it will undoubtedly arise as well. The ultimate outcome remains to be seen. But in the meantime, religious liberty proponents can find encouragement in some of the strongest language on the issue coming from a presidential administration in decades.