Federal Law Protections for Religious Liberty, 49668-49680 [2017-23269]

Agencies

• Department of Justice

[Federal Register Volume 82, Number 206 (Thursday, October 26, 2017)]
[Notices]
[Pages 49668-49680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23269]


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DEPARTMENT OF JUSTICE

[OLP Docket No. 165]


Federal Law Protections for Religious Liberty

AGENCY: Department of Justice.

ACTION: Notice.

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SUMMARY: This notice provides the text of the Attorney General's 
Memorandum of October 6, 2017, for all executive departments and 
agencies entitled ``Federal Law Protections for Religious Liberty'' and 
the appendix to this Memorandum.

DATES: This notice is applicable on October 6, 2017.

FOR FURTHER INFORMATION CONTACT: Jennifer Dickey, Counsel, Office of 
Legal Policy, U.S. Department of Justice, 950 Pennsylvania Avenue NW., 
Washington, D.C. 20530, phone (202) 514-4601.

SUPPLEMENTARY INFORMATION: The President instructed the Attorney 
General to issue guidance interpreting religious liberty protections in 
federal law, as appropriate. Exec. Order 13798, Sec.  4 (May 4, 2017). 
Pursuant to that instruction and consistent with the authority to 
provide advice and opinions on questions of existing law to the 
Executive Branch, the Attorney General issued the following memorandum 
to the heads of all executive departments and agencies on October 6, 
2017.

    Dated: October 20, 2017.
Beth Ann Williams,
Assistant Attorney General, Office of Legal Policy.
MEMORANDUM FOR ALL EXECUTIVE DEPARTMENTS AND AGENCIES
FROM: THE ATTORNEY GENERAL
SUBJECT: Federal Law Protections for Religious Liberty
    The President has instructed me to issue guidance interpreting 
religious liberty protections in federal law, as appropriate. Exec. 
Order No. 13798 Sec.  4, 82 Fed. Reg. 21675 (May 4, 2017). Consistent 
with that instruction, I am issuing this memorandum and appendix to 
guide all administrative agencies and executive departments in the 
execution of federal law.

Principles of Religious Liberty

    Religious liberty is a foundational principle of enduring 
importance in America, enshrined in our Constitution and other sources 
of federal law. As James Madison explained in his Memorial and 
Remonstrance Against Religious Assessments, the free exercise of 
religion ``is in its nature an unalienable right'' because the duty 
owed to one's Creator ``is precedent, both in order of time and in 
degree of obligation, to the claims of Civil Society.'' \1\ Religious 
liberty is not merely a right to personal religious beliefs or even to 
worship in a sacred place. It also encompasses religious observance and 
practice. Except in the narrowest circumstances, no one should be 
forced to choose between living out his or her faith and complying with 
the law. Therefore, 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 following twenty principles should 
guide administrative agencies and executive departments in carrying out 
this task. These principles should be understood and interpreted in 
light of the legal analysis set forth in the appendix to this 
memorandum.
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    \1\ James Madison, Memorial and Remonstrance Against Religious 
Assessments (June 20, 1785), in 5 The Founders' Constitution 82 
(Philip B. Kurland & Ralph Lerner eds., 1987).
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1. The freedom of religion is a fundamental right of paramount 
importance, expressly protected by federal law.

    Religious liberty is enshrined in the text of our Constitution and 
in numerous federal statutes. It encompasses the right of all Americans 
to exercise their religion freely, without being coerced to join an 
established church or to satisfy a religious test as a qualification 
for public office. It also encompasses the right of all Americans to 
express their religious beliefs, subject to the same narrow limits that 
apply to all forms of speech. In the United States, the free exercise 
of religion is not a mere policy preference to be traded against other 
policy preferences. It is a fundamental right.

2. The free exercise of religion includes the right to act or abstain 
from action in accordance with one's religious beliefs.

    The Free Exercise Clause protects not just the right to believe or 
the right to worship; it protects the right to perform or abstain from 
performing certain physical acts in accordance with one's beliefs. 
Federal statutes, including the Religious Freedom Restoration Act of 
1993 (``RFRA''), support that protection, broadly defining the exercise 
of religion to encompass all aspects of observance and practice, 
whether or not central to, or required by, a particular religious 
faith.

3. The freedom of religion extends to persons and organizations.

    The Free Exercise Clause protects not just persons, but persons 
collectively exercising their religion through churches or other 
religious denominations, religious organizations, schools, private 
associations, and even businesses.

4. Americans do not give up their freedom of religion by participating 
in the marketplace, partaking of the public square, or interacting with 
government.

    Constitutional protections for religious liberty are not 
conditioned upon the willingness of a religious person or organization 
to remain separate from civil society. Although the application of the 
relevant protections may differ in different contexts, individuals and 
organizations do not give up their religious-liberty protections by 
providing or receiving social services, education, or healthcare; by 
seeking to earn or earning a living; by employing others to do the 
same; by receiving government grants or contracts; or by otherwise 
interacting with federal, state, or local governments.

5. Government may not restrict acts or abstentions because of the 
beliefs they display.

    To avoid the very sort of religious persecution and intolerance 
that led to the founding of the United States, the Free Exercise Clause 
of the Constitution protects against government actions that target 
religious conduct. Except in rare circumstances, government may not 
treat the same conduct as lawful when undertaken for secular reasons 
but unlawful when undertaken for religious reasons. For example, 
government may not attempt to target religious persons or conduct by 
allowing the distribution of political leaflets in a park but 
forbidding the distribution of religious leaflets in the same park.

[[Page 49669]]

6. Government may not target religious individuals or entities for 
special disabilities based on their religion.

    Much as government may not restrict actions only because of 
religious belief, government may not target persons or individuals 
because of their religion. Government may not exclude religious 
organizations as such from secular aid programs, at least when the aid 
is not being used for explicitly religious activities such as worship 
or proselytization. For example, the Supreme Court has held that if 
government provides reimbursement for scrap tires to replace child 
playground surfaces, it may not deny participation in that program to 
religious schools. Nor may government deny religious schools--including 
schools whose curricula and activities include religious elements--the 
right to participate in a voucher program, so long as the aid reaches 
the schools through independent decisions of parents.

7. Government may not target religious individuals or entities through 
discriminatory enforcement of neutral, generally applicable laws.

    Although government generally may subject religious persons and 
organizations to neutral, generally applicable laws--e.g., across-the-
board criminal prohibitions or certain time, place, and manner 
restrictions on speech--government may not apply such laws in a 
discriminatory way. For instance, the Internal Revenue Service may not 
enforce the Johnson Amendment--which prohibits 501(c)(3) non-profit 
organizations from intervening in a political campaign on behalf of a 
candidate--against a religious non-profit organization under 
circumstances in which it would not enforce the amendment against a 
secular non-profit organization. Likewise, the National Park Service 
may not require religious groups to obtain permits to hand out fliers 
in a park if it does not require similarly situated secular groups to 
do so, and no federal agency tasked with issuing permits for land use 
may deny a permit to an Islamic Center seeking to build a mosque when 
the agency has granted, or would grant, a permit to similarly situated 
secular organizations or religious groups.

8. Government may not officially favor or disfavor particular religious 
groups.

    Together, the Free Exercise Clause and the Establishment Clause 
prohibit government from officially preferring one religious group to 
another. This principle of denominational neutrality means, for 
example, that government cannot selectively impose regulatory burdens 
on some denominations but not others. It likewise cannot favor some 
religious groups for participation in the Combined Federal Campaign 
over others based on the groups' religious beliefs.

9. Government may not interfere with the autonomy of a religious 
organization.

    Together, the Free Exercise Clause and the Establishment Clause 
also restrict governmental interference in intra-denominational 
disputes about doctrine, discipline, or qualifications for ministry or 
membership. For example, government may not impose its 
nondiscrimination rules to require Catholic seminaries or Orthodox 
Jewish yeshivas to accept female priests or rabbis.

10. The Religious Freedom Restoration Act of 1993 prohibits the federal 
government from substantially burdening any aspect of religious 
observance or practice, unless imposition of that burden on a 
particular religious adherent satisfies strict scrutiny.

    RFRA prohibits the federal government from substantially burdening 
a person's exercise of religion, unless the federal government 
demonstrates that application of such burden to the religious adherent 
is the least restrictive means of achieving a compelling governmental 
interest. RFRA applies to all actions by federal administrative 
agencies, including rulemaking, adjudication or other enforcement 
actions, and grant or contract distribution and administration.

11. RFRA's protection extends not just to individuals, but also to 
organizations, associations, and at least some for-profit corporations.

    RFRA protects the exercise of religion by individuals and by 
corporations, companies, associations, firms, partnerships, societies, 
and joint stock companies. For example, the Supreme Court has held that 
Hobby Lobby, a closely held, for-profit corporation with more than 500 
stores and 13,000 employees, is protected by RFRA.

12. RFRA does not permit the federal government to second-guess the 
reasonableness of a religious belief.

    RFRA applies to all sincerely held religious beliefs, whether or 
not central to, or mandated by, a particular religious organization or 
tradition. Religious adherents will often be required to draw lines in 
the application of their religious beliefs, and government is not 
competent to assess the reasonableness of such lines drawn, nor would 
it be appropriate for government to do so. Thus, for example, a 
government agency may not second-guess the determination of a factory 
worker that, consistent with his religious precepts, he can work on a 
line producing steel that might someday make its way into armaments but 
cannot work on a line producing the armaments themselves. Nor may the 
Department of Health and Human Services second-guess the determination 
of a religious employer that providing contraceptive coverage to its 
employees would make the employer complicit in wrongdoing in violation 
of the organization's religious precepts.

13. A governmental action substantially burdens an exercise of religion 
under RFRA if it bans an aspect of an adherent's religious observance 
or practice, compels an act inconsistent with that observance or 
practice, or substantially pressures the adherent to modify such 
observance or practice.

    Because the government cannot second-guess the reasonableness of a 
religious belief or the adherent's assessment of the religious 
connection between the government mandate and the underlying religious 
belief, the substantial burden test focuses on the extent of 
governmental compulsion involved. In general, a government action that 
bans an aspect of an adherent's religious observance or practice, 
compels an act inconsistent with that observance or practice, or 
substantially pressures the adherent to modify such observance or 
practice, will qualify as a substantial burden on the exercise of 
religion. For example, a Bureau of Prisons regulation that bans a 
devout Muslim from growing even a half-inch beard in accordance with 
his religious beliefs substantially burdens his religious practice. 
Likewise, a Department of Health and Human Services regulation 
requiring employers to provide insurance coverage for contraceptive 
drugs in violation of their religious beliefs or face significant fines 
substantially burdens their religious practice, and a law that 
conditions receipt of significant government benefits on willingness to 
work on Saturday substantially burdens the religious practice of those 
who, as a matter of religious observance or practice, do not work on 
that day. But a law that infringes, even severely, an aspect of an 
adherent's religious observance or practice that the adherent himself 
regards as unimportant or inconsequential imposes no substantial

[[Page 49670]]

burden on that adherent. And a law that regulates only the government's 
internal affairs and does not involve any governmental compulsion on 
the religious adherent likewise imposes no substantial burden.

14. The strict scrutiny standard applicable to RFRA is exceptionally 
demanding.

    Once a religious adherent has identified a substantial burden on 
his or her religious belief, the federal government can impose that 
burden on the adherent only if it is the least restrictive means of 
achieving a compelling governmental interest. Only those interests of 
the highest order can outweigh legitimate claims to the free exercise 
of religion, and such interests must be evaluated not in broad 
generalities but as applied to the particular adherent. Even if the 
federal government could show the necessary interest, it would also 
have to show that its chosen restriction on free exercise is the least 
restrictive means of achieving that interest. That analysis requires 
the government to show that it cannot accommodate the religious 
adherent while achieving its interest through a viable alternative, 
which may include, in certain circumstances, expenditure of additional 
funds, modification of existing exemptions, or creation of a new 
program.

15. RFRA applies even where a religious adherent seeks an exemption 
from a legal obligation requiring the adherent to confer benefits on 
third parties.

    Although burdens imposed on third parties are relevant to RFRA 
analysis, the fact that an exemption would deprive a third party of a 
benefit does not categorically render an exemption unavailable. Once an 
adherent identifies a substantial burden on his or her religious 
exercise, RFRA requires the federal government to establish that denial 
of an accommodation or exemption to that adherent is the least 
restrictive means of achieving a compelling governmental interest.

16. Title VII of the Civil Rights Act of 1964, as amended, prohibits 
covered employers from discriminating against individuals on the basis 
of their religion.

    Employers covered by Title VII may not fail or refuse to hire, 
discharge, or discriminate against any individual with respect to 
compensation, terms, conditions, or privileges of employment because of 
that individual's religion. Such employers also may not classify their 
employees or applicants in a way that would deprive or tend to deprive 
any individual of employment opportunities because of the individual's 
religion. This protection applies regardless of whether the individual 
is a member of a religious majority or minority. But the protection 
does not apply in the same way to religious employers, who have certain 
constitutional and statutory protections for religious hiring 
decisions.

17. Title VII's protection extends to discrimination on the basis of 
religious observance or practice as well as belief, unless the employer 
cannot reasonably accommodate such observance or practice without undue 
hardship on the business.

    Title VII defines ``religion'' broadly to include all aspects of 
religious observance or practice, except when an employer can establish 
that a particular aspect of such observance or practice cannot 
reasonably be accommodated without undue hardship to the business. For 
example, covered employers are required to adjust employee work 
schedules for Sabbath observance, religious holidays, and other 
religious observances, unless doing so would create an undue hardship, 
such as materially compromising operations or violating a collective 
bargaining agreement. Title VII might also require an employer to 
modify a no-head-coverings policy to allow a Jewish employee to wear a 
yarmulke or a Muslim employee to wear a headscarf. An employer who 
contends that it cannot reasonably accommodate a religious observance 
or practice must establish undue hardship on its business with 
specificity; it cannot rely on assumptions about hardships that might 
result from an accommodation.

18. The Clinton Guidelines on Religious Exercise and Religious 
Expression in the Federal Workplace provide useful examples for private 
employers of reasonable accommodations for religious observance and 
practice in the workplace.

    President Clinton issued Guidelines on Religious Exercise and 
Religious Expression in the Federal Workplace (``Clinton Guidelines'') 
explaining that federal employees may keep religious materials on their 
private desks and read them during breaks; discuss their religious 
views with other employees, subject to the same limitations as other 
forms of employee expression; display religious messages on clothing or 
wear religious medallions; and invite others to attend worship services 
at their churches, except to the extent that such speech becomes 
excessive or harassing. The Clinton Guidelines have the force of an 
Executive Order, and they also provide useful guidance to private 
employers about ways in which religious observance and practice can 
reasonably be accommodated in the workplace.

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.

20. As a general matter, the federal government may not condition 
receipt of a federal grant or contract on the effective relinquishment 
of a religious organization's hiring exemptions or attributes of its 
religious character.

    Religious organizations are entitled to compete on equal footing 
for federal financial assistance used to support government programs. 
Such organizations generally may not be required to alter their 
religious character to participate in a government program, nor to 
cease engaging in explicitly religious activities outside the program, 
nor effectively to relinquish their federal statutory protections for 
religious hiring decisions.

Guidance for Implementing Religious Liberty Principles

    Agencies must pay keen attention, in everything they do, to the 
foregoing principles of religious liberty.

Agencies as Employers

    Administrative agencies should review their current policies and 
practices to ensure that they comply

[[Page 49671]]

with all applicable federal laws and policies regarding accommodation 
for religious observance and practice in the federal workplace, and all 
agencies must observe such laws going forward. In particular, all 
agencies should review the Guidelines on Religious Exercise and 
Religious Expression in the Federal Workplace, which President Clinton 
issued on August 14, 1997, to ensure that they are following those 
Guidelines. All agencies should also consider practical steps to 
improve safeguards for religious liberty in the federal workplace, 
including through subject-matter experts who can answer questions about 
religious nondiscrimination rules, information websites that employees 
may access to learn more about their religious accommodation rights, 
and training for all employees about federal protections for religious 
observance and practice in the workplace.

Agencies Engaged in Rulemaking

    In formulating rules, regulations, and policies, administrative 
agencies should also proactively consider potential burdens on the 
exercise of religion and possible accommodations of those burdens. 
Agencies should consider designating an officer to review proposed 
rules with religious accommodation in mind or developing some other 
process to do so. In developing that process, agencies should consider 
drawing upon the expertise of the White House Office of Faith-Based and 
Neighborhood Partnerships to identify concerns about the effect of 
potential agency action on religious exercise. Regardless of the 
process chosen, agencies should ensure that they review all proposed 
rules, regulations, and policies that have the potential to have an 
effect on religious liberty for compliance with the principles of 
religious liberty outlined in this memorandum and appendix before 
finalizing those rules, regulations, or policies. The Office of Legal 
Policy will also review any proposed agency or executive action upon 
which the Department's comments, opinion, or concurrence are sought, 
see, e.g., Exec. Order 12250 Sec.  1-2, 45 Fed. Reg. 72995 (Nov. 2, 
1980), to ensure that such action complies with the principles of 
religious liberty outlined in this memorandum and appendix. The 
Department will not concur in any proposed action that does not comply 
with federal law protections for religious liberty as interpreted in 
this memorandum and appendix, and it will transmit any concerns it has 
about the proposed action to the agency or the Office of Management and 
Budget as appropriate. If, despite these internal reviews, a member of 
the public identifies a significant concern about a prospective rule's 
compliance with federal protections governing religious liberty during 
a period for public comment on the rule, the agency should carefully 
consider and respond to that request in its decision. See Perez v. 
Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015). In appropriate 
circumstances, an agency might explain that it will consider requests 
for accommodations on a case-by-case basis rather than in the rule 
itself, but the agency should provide a reasoned basis for that 
approach.

Agencies Engaged in Enforcement Actions

    Much like administrative agencies engaged in rulemaking, agencies 
considering potential enforcement actions should consider whether such 
actions are consistent with federal protections for religious liberty. 
In particular, agencies should remember that RFRA applies to agency 
enforcement just as it applies to every other governmental action. An 
agency should consider RFRA when setting agency-wide enforcement rules 
and priorities, as well as when making decisions to pursue or continue 
any particular enforcement action, and when formulating any generally 
applicable rules announced in an agency adjudication.
    Agencies should remember that discriminatory enforcement of an 
otherwise nondiscriminatory law can also violate the Constitution. 
Thus, agencies may not target or single out religious organizations or 
religious conduct for disadvantageous treatment in enforcement 
priorities or actions. The President identified one area where this 
could be a problem in Executive Order 13798, when he directed the 
Secretary of the Treasury, to the extent permitted by law, not to take 
any ``adverse action against any individual, house of worship, or other 
religious organization on the basis that such individual or 
organization speaks or has spoken about moral or political issues from 
a religious perspective, where speech of similar character'' from a 
non-religious perspective has not been treated as participation or 
intervention in a political campaign. Exec. Order No. 13798, Sec.  2, 
82 Fed. Reg. at 21675. But the requirement of nondiscrimination toward 
religious organizations and conduct applies across the enforcement 
activities of the Executive Branch, including within the enforcement 
components of the Department of Justice.

Agencies Engaged in Contracting and Distribution of Grants

    Agencies also must not discriminate against religious organizations 
in their contracting or grant-making activities. Religious 
organizations should be given the opportunity to compete for government 
grants or contracts and participate in government programs on an equal 
basis with nonreligious organizations. Absent unusual circumstances, 
agencies should not condition receipt of a government contract or grant 
on the effective relinquishment of a religious organization's Section 
702 exemption for religious hiring practices, or any other 
constitutional or statutory protection for religious organizations. In 
particular, agencies should not attempt through conditions on grants or 
contracts to meddle in the internal governance affairs of religious 
organizations or to limit those organizations' otherwise protected 
activities.
* * * * *
Any questions about this memorandum or the appendix should be addressed 
to the Office of Legal Policy, U.S. Department of Justice, 950 
Pennsylvania Avenue NW., Washington, DC 20530, phone (202) 514-4601.

APPENDIX

    Although not an exhaustive treatment of all federal protections for 
religious liberty, this appendix summarizes the key constitutional and 
federal statutory protections for religious liberty and sets forth the 
legal basis for the religious liberty principles described in the 
foregoing memorandum.

Constitutional Protections

    The people, acting through their Constitution, have singled out 
religious liberty as deserving of unique protection. In the original 
version of the Constitution, the people agreed that ``no religious Test 
shall ever be required as a Qualification to any Office or public Trust 
under the United States.'' U.S. Const., art. VI, cl. 3. The people then 
amended the Constitution during the First Congress to clarify that 
``Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof.'' U.S. Const. amend. I, cl. 
1. Those protections have been incorporated against the States. Everson 
v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947) (Establishment Clause); 
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (Free Exercise 
Clause).

[[Page 49672]]

A. Free Exercise Clause
    The Free Exercise Clause recognizes and guarantees Americans the 
``right to believe and profess whatever religious doctrine [they] 
desire [ ].'' Empl't Div. v. Smith, 494 U.S. 872, 877 (1990). 
Government may not attempt to regulate religious beliefs, compel 
religious beliefs, or punish religious beliefs. See id.; see also 
Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v. Watkins, 367 
U.S. 488, 492-93, 495 (1961); United States v. Ballard, 322 U.S. 78, 86 
(1944). It may not lend its power to one side in intra-denominational 
disputes about dogma, authority, discipline, or qualifications for 
ministry or membership. Hosanna-Tabor Evangelical Lutheran Church & 
Sch. v. EEOC, 565 U.S. 171, 185 (2012); Smith, 494 U.S. at 877; Serbian 
Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976); 
Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian 
Church, 393 U.S. 440, 451 (1969); Kedroff v. St. Nicholas Cathedral of 
the Russian Orthodox Church, 344 U.S. 94, 116, 120-21 (1952). It may 
not discriminate against or impose special burdens upon individuals 
because of their religious beliefs or status. Smith, 494 U.S. at 877; 
McDaniel v. Paty, 435 U.S. 618, 627 (1978). And with the exception of 
certain historical limits on the freedom of speech, government may not 
punish or otherwise harass churches, church officials, or religious 
adherents for speaking on religious topics or sharing their religious 
beliefs. See Widmar v. Vincent, 454 U.S. 263, 269 (1981); see also U.S. 
Const., amend. I, cl. 3. The Constitution's protection against 
government regulation of religious belief is absolute; it is not 
subject to limitation or balancing against the interests of the 
government. Smith, 494 U.S. at 877; Sherbert, 374 U.S. at 402; see also 
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) 
(``If there is any fixed star in our constitutional constellation, it 
is that no official, high or petty, can prescribe what shall be 
orthodox in politics, nationalism, religion, or other matters of 
opinion or force citizens to confess by word or act their faith 
therein.'').
    The Free Exercise Clause protects beliefs rooted in religion, even 
if such beliefs are not mandated by a particular religious organization 
or shared among adherents of a particular religious tradition. Frazee 
v. Illinois Dept. of Emp't Sec., 489 U.S. 829, 833-34 (1989). As the 
Supreme Court has repeatedly counseled, ``religious beliefs need not be 
acceptable, logical, consistent, or comprehensible to others in order 
to merit First Amendment protection.'' Church of the Lukumi Babalu Aye 
v. Hialeah, 508 U.S. 520, 531 (1993) (internal quotation marks 
omitted). They must merely be ``sincerely held.'' Frazee, 489 U.S. at 
834.
    Importantly, the protection of the Free Exercise Clause also 
extends to acts undertaken in accordance with such sincerely-held 
beliefs. That conclusion flows from the plain text of the First 
Amendment, which guarantees the freedom to ``exercise'' religion, not 
just the freedom to ``believe'' in religion. See Smith, 494 U.S. at 
877; see also Thomas, 450 U.S. at 716; Paty, 435 U.S. at 627; Sherbert, 
374 U.S. at 403-04; Wisconsin v. Yoder, 406 U.S. 205, 219-20 (1972). 
Moreover, no other interpretation would actually guarantee the freedom 
of belief that Americans have so long regarded as central to individual 
liberty. Many, if not most, religious beliefs require external 
observance and practice through physical acts or abstention from acts. 
The tie between physical acts and religious beliefs may be readily 
apparent (e.g., attendance at a worship service) or not (e.g., service 
to one's community at a soup kitchen or a decision to close one's 
business on a particular day of the week). The ``exercise of religion'' 
encompasses all aspects of religious observance and practice. And 
because individuals may act collectively through associations and 
organizations, it encompasses the exercise of religion by such entities 
as well. See, e.g., Hosanna-Tabor, 565 U.S. at 199; Church of the 
Lukumi Babalu Aye, 508 U.S. at 525-26, 547; see also Burwell v. Hobby 
Lobby Stores, Inc., 134 S. Ct. 2751, 2770, 2772-73 (2014) (even a 
closely held for-profit corporation may exercise religion if operated 
in accordance with asserted religious principles).
    As with most constitutional protections, however, the protection 
afforded to Americans by the Free Exercise Clause for physical acts is 
not absolute, Smith, 491 U.S. at 878-79, and the Supreme Court has 
identified certain principles to guide the analysis of the scope of 
that protection. First, government may not restrict ``acts or 
abstentions only when they are engaged in for religious reasons, or 
only because of the religious belief that they display,'' id. at 877, 
nor ``target the religious for special disabilities based on their 
religious status,'' Trinity Lutheran Church of Columbia, Inc. v. Comer, 
582 U.S. ___, ___ (2017) (slip op. at 6) (internal quotation marks 
omitted), for it was precisely such ``historical instances of religious 
persecution and intolerance that gave concern to those who drafted the 
Free Exercise Clause.'' Church of the Lukumi Babalu Aye, 508 U.S. at 
532 (internal quotation marks omitted). The Free Exercise Clause 
protects against ``indirect coercion or penalties on the free exercise 
of religion'' just as surely as it protects against ``outright 
prohibitions'' on religious exercise. Trinity Lutheran, 582 U.S. at ___ 
(slip op. at 11) (internal quotation marks omitted). ``It is too late 
in the day to doubt that the liberties of religion and expression may 
be infringed by the denial of or placing of conditions upon a benefit 
or privilege.'' Id. (quoting Sherbert, 374 U.S. at 404).
    Because a law cannot have as its official ``object or purpose . . . 
the suppression of religion or religious conduct,'' courts must 
``survey meticulously'' the text and operation of a law to ensure that 
it is actually neutral and of general applicability. Church of the 
Lukumi Babalu Aye, 508 U.S. at 533-34 (internal quotation marks 
omitted). A law is not neutral if it singles out particular religious 
conduct for adverse treatment; treats the same conduct as lawful when 
undertaken for secular reasons but unlawful when undertaken for 
religious reasons; visits ``gratuitous restrictions on religious 
conduct''; or ``accomplishes . . . a `religious gerrymander,' an 
impermissible attempt to target [certain individuals] and their 
religious practices.'' Id. at 533-35, 538 (internal quotation marks 
omitted). A law is not generally applicable if ``in a selective manner 
[it] impose[s] burdens only on conduct motivated by religious belief,'' 
id. at 543, including by ``fail[ing] to prohibit nonreligious conduct 
that endangers [its] interests in a similar or greater degree than . . 
. does'' the prohibited conduct, id., or enables, expressly or de 
facto, ``a system of individualized exemptions,'' as discussed in 
Smith, 494 U.S. at 884; see also Church of the Lukumi Babalu Aye, 508 
U.S. at 537.
    ``Neutrality and general applicability are interrelated, . . . 
[and] failure to satisfy one requirement is a likely indication that 
the other has not been satisfied.'' Id. at 531. For example, a law that 
disqualifies a religious person or organization from a right to compete 
for a public benefit--including a grant or contract--because of the 
person's religious character is neither neutral nor generally 
applicable. See Trinity Lutheran, 582 U.S. at ___-___ (slip op. at 9-
11). Likewise, a law that selectively prohibits the killing of animals 
for religious reasons and fails to prohibit the killing of animals for 
many nonreligious reasons, or that selectively prohibits a business 
from refusing to stock a product for religious reasons but fails to 
prohibit such refusal for myriad

[[Page 49673]]

commercial reasons, is neither neutral, nor generally applicable. See 
Church of the Lukumi Babalu Aye, 508 U.S. at 533-36, 542-45. 
Nonetheless, the requirements of neutral and general applicability are 
separate, and any law burdening religious practice that fails one or 
both must be subjected to strict scrutiny, id. at 546.
    Second, even a neutral, generally applicable law is subject to 
strict scrutiny under this Clause if it restricts the free exercise of 
religion and another constitutionally protected liberty, such as the 
freedom of speech or association, or the right to control the 
upbringing of one's children. See Smith, 494 U.S. at 881-82; Axson-
Flynn v. Johnson, 356 F.3d 1277, 1295-97 (10th Cir. 2004). Many Free 
Exercise cases fall in this category. For example, a law that seeks to 
compel a private person's speech or expression contrary to his or her 
religious beliefs implicates both the freedoms of speech and free 
exercise. See, e.g., Wooley v. Maynard, 430 U.S. 705, 707-08 (1977) 
(challenge by Jehovah's Witnesses to requirement that state license 
plates display the motto ``Live Free or Die''); Axson-Flynn, 356 F.3d 
at 1280 (challenge by Mormon student to University requirement that 
student actors use profanity and take God's name in vain during 
classroom acting exercises). A law taxing or prohibiting door-to-door 
solicitation, at least as applied to individuals distributing religious 
literature and seeking contributions, likewise implicates the freedoms 
of speech and free exercise. Murdock v. Pennsylvania, 319 U.S. 105, 
108-09 (1943) (challenge by Jehovah's Witnesses to tax on canvassing or 
soliciting); Cantwell, 310 U.S. at 307 (same). A law requiring children 
to receive certain education, contrary to the religious beliefs of 
their parents, implicates both the parents' right to the care, custody, 
and control of their children and to free exercise. Yoder, 406 U.S. at 
227-29 (challenge by Amish parents to law requiring high school 
attendance).
    Strict scrutiny is the ``most rigorous'' form of scrutiny 
identified by the Supreme Court. Church of the Lukumi Babalu Aye, 508 
U.S. at 546; see also City of Boerne v. Flores, 521 U.S. 507, 534 
(1997) (``Requiring a State to demonstrate a compelling interest and 
show that it has adopted the least restrictive means of achieving that 
interest is the most demanding test known to constitutional law.''). It 
is the same standard applied to governmental classifications based on 
race, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 
U.S. 701, 720 (2007), and restrictions on the freedom of speech, Reed 
v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2228 (2015). See Church of 
the Lukumi Babalu Aye, 508 U.S. at 546-47. Under this level of 
scrutiny, government must establish that a challenged law ``advance[s] 
interests of the highest order'' and is ``narrowly tailored in pursuit 
of those interests.'' Id. at 546 (internal quotation marks omitted). 
``[O]nly in rare cases'' will a law survive this level of scrutiny. Id.
    Of course, even when a law is neutral and generally applicable, 
government may run afoul of the Free Exercise Clause if it interprets 
or applies the law in a manner that discriminates against religious 
observance and practice. See, e.g., Church of the Lukumi Babalu Aye, 
508 U.S. at 537 (government discriminatorily interpreted an ordinance 
prohibiting the unnecessary killing of animals as prohibiting only 
killing of animals for religious reasons); Fowler v. Rhode Island, 345 
U.S. 67, 69-70 (1953) (government discriminatorily enforced ordinance 
prohibiting meetings in public parks against only certain religious 
groups). The Free Exercise Clause, much like the Free Speech Clause, 
requires equal treatment of religious adherents. See Trinity Lutheran, 
582 U.S. at __ (slip op. at 6); cf. Good News Club v. Milford Central 
Sch., 533 U.S. 98, 114 (2001) (recognizing that Establishment Clause 
does not justify discrimination against religious clubs seeking use of 
public meeting spaces); Rosenberger v. Rector & Visitors of Univ. of 
Va., 515 U.S. 819, 837, 841 (1995) (recognizing that Establishment 
Clause does not justify discrimination against religious student 
newspaper's participation in neutral reimbursement program). That is 
true regardless of whether the discriminatory application is initiated 
by the government itself or by private requests or complaints. See, 
e.g., Fowler, 345 U.S. at 69; Niemotko v. Maryland, 340 U.S. 268, 272 
(1951).
B. Establishment Clause
    The Establishment Clause, too, protects religious liberty. It 
prohibits government from establishing a religion and coercing 
Americans to follow it. See Town of Greece, N.Y. v. Galloway, 134 S. 
Ct. 1811, 1819-20 (2014); Good News Club, 533 U.S. at 115. It restricts 
government from interfering in the internal governance or 
ecclesiastical decisions of a religious organization. Hosanna-Tabor, 
565 U.S. at 188-89. And it prohibits government from officially 
favoring or disfavoring particular religious groups as such or 
officially advocating particular religious points of view. See 
Galloway, 134 S. Ct. at 1824; Larson v. Valente, 456 U.S. 228, 244-46 
(1982). Indeed, ``a significant factor in upholding governmental 
programs in the face of Establishment Clause attack is their neutrality 
towards religion.'' Rosenberger, 515 U.S. at 839 (emphasis added). That 
``guarantee of neutrality is respected, not offended, when the 
government, following neutral criteria and evenhanded policies, extends 
benefits to recipients whose ideologies and viewpoints, including 
religious ones, are broad and diverse.'' Id. Thus, religious adherents 
and organizations may, like nonreligious adherents and organizations, 
receive indirect financial aid through independent choice, or, in 
certain circumstances, direct financial aid through a secular-aid 
program. See, e.g., Trinity Lutheran, 582 U.S. at ___ (slip. op. at 6) 
(scrap tire program); Zelman v. Simmons-Harris, 536 U.S. 639, 652 
(2002) (voucher program).
C. Religious Test Clause
    Finally, the Religious Test Clause, though rarely invoked, provides 
a critical guarantee to religious adherents that they may serve in 
American public life. The Clause reflects the judgment of the Framers 
that a diversity of religious viewpoints in government would enhance 
the liberty of all Americans. And after the Religion Clauses were 
incorporated against the States, the Supreme Court shared this view, 
rejecting a Tennessee law that ``establishe[d] as a condition of office 
the willingness to eschew certain protected religious practices.'' 
Paty, 435 U.S. at 632 (Brennan, J., and Marshall, J., concurring in 
judgment); see also id. at 629 (plurality op.) (``[T]he American 
experience provides no persuasive support for the fear that clergymen 
in public office will be less careful of anti-establishment interests 
or less faithful to their oaths of civil office than their unordained 
counterparts.'').

Statutory Protections

    Recognizing the centrality of religious liberty to our nation, 
Congress has buttressed these constitutional rights with statutory 
protections for religious observance and practice. These protections 
can be found in, among other statutes, the Religious Freedom 
Restoration Act of 1993, 42 U.S.C. 2000bb et seq.; the Religious Land 
Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq.; Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.; and the 
American Indian Religious Freedom Act, 42 U.S.C. 1996. Such protections 
ensure not only that government tolerates religious observance and 
practice, but that it embraces religious adherents as full

[[Page 49674]]

members of society, able to contribute through employment, use of 
public accommodations, and participation in government programs. The 
considered judgment of the United States is that we are stronger 
through accommodation of religion than segregation or isolation of it.
A. Religious Freedom Restoration Act of 1993 (RFRA)
    The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 
2000bb et seq., prohibits the federal government from ``substantially 
burden[ing] a person's exercise of religion'' unless ``it demonstrates 
that application of the burden to the person (1) is in furtherance of a 
compelling governmental interest; and (2) is the least restrictive 
means of furthering that compelling governmental interest.'' Id. Sec.  
2000bb-1(a), (b). The Act applies even where the burden arises out of a 
``rule of general applicability'' passed without animus or 
discriminatory intent. See id. Sec.  2000bb-1(a). It applies to ``any 
exercise of religion, whether or not compelled by, or central to, a 
system of religious belief,'' see Sec. Sec.  2000bb-2(4), 2000cc-5(7), 
and covers ``individuals'' as well as ``corporations, companies, 
associations, firms, partnerships, societies, and joint stock 
companies,'' 1 U.S.C. 1, including for-profit, closely-held 
corporations like those involved in Hobby Lobby, 134 S. Ct. at 2768.
    Subject to the exceptions identified below, a law ``substantially 
burden[s] a person's exercise of religion,'' 42 U.S.C. 2000bb-1, if it 
bans an aspect of the adherent's religious observance or practice, 
compels an act inconsistent with that observance or practice, or 
substantially pressures the adherent to modify such observance or 
practice, see Sherbert, 374 U.S. at 405-06. The ``threat of criminal 
sanction'' will satisfy these principles, even when, as in Yoder, the 
prospective punishment is a mere $5 fine. 406 U.S. at 208, 218. And the 
denial of, or condition on the receipt of, government benefits may 
substantially burden the exercise of religion under these principles. 
Sherbert, 374 U.S. at 405-06; see also Hobbie v. Unemployment Appeals 
Comm'n of Fla., 480 U.S. 136, 141 (1987); Thomas, 450 U.S. at 717-18. 
But a law that infringes, even severely, an aspect of an adherent's 
religious observance or practice that the adherent himself regards as 
unimportant or inconsequential imposes no substantial burden on that 
adherent. And a law that regulates only the government's internal 
affairs and does not involve any governmental compulsion on the 
religious adherent likewise imposes no substantial burden. See, e.g., 
Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 448-49 
(1988); Bowen v. Roy, 476 U.S. 693, 699-700 (1986).
    As with claims under the Free Exercise Clause, RFRA does not permit 
a court to inquire into the reasonableness of a religious belief, 
including into the adherent's assessment of the religious connection 
between a belief asserted and what the government forbids, requires, or 
prevents. Hobby Lobby, 134 S. Ct. at 2778. If the proffered belief is 
sincere, it is not the place of the government or a court to second-
guess it. Id. A good illustration of the point is Thomas v. Review 
Board of Indiana Employment Security Division--one of the Sherbert line 
of cases, whose analytical test Congress sought, through RFRA, to 
restore, 42 U.S.C. 2000bb. There, the Supreme Court concluded that the 
denial of unemployment benefits was a substantial burden on the 
sincerely held religious beliefs of a Jehovah's Witness who had quit 
his job after he was transferred from a department producing sheet 
steel that could be used for military armaments to a department 
producing turrets for military tanks. Thomas, 450 U.S. at 716-18. In 
doing so, the Court rejected the lower court's inquiry into ``what [the 
claimant's] belief was and what the religious basis of his belief 
was,'' noting that no one had challenged the sincerity of the 
claimant's religious beliefs and that ``[c]ourts should not undertake 
to dissect religious beliefs because the believer admits that he is 
struggling with his position or because his beliefs are not articulated 
with the clarity and precision that a more sophisticated person might 
employ.'' Id. at 714-15 (internal quotation marks omitted). The Court 
likewise rejected the lower court's comparison of the claimant's views 
to those of other Jehovah's Witnesses, noting that ``[i]ntrafaith 
differences of that kind are not uncommon among followers of a 
particular creed, and the judicial process is singularly ill equipped 
to resolve such differences.'' Id. at 715. The Supreme Court reinforced 
this reasoning in Hobby Lobby, rejecting the argument that ``the 
connection between what the objecting parties [were required to] do 
(provide health-insurance coverage for four methods of contraception 
that may operate after the fertilization of an egg) and the end that 
they [found] to be morally wrong (destruction of an embryo) [wa]s 
simply too attenuated.'' 134 S. Ct. at 2777. The Court explained that 
the plaintiff corporations had a sincerely-held religious belief that 
provision of the coverage was morally wrong, and it was ``not for us to 
say that their religious beliefs are mistaken or insubstantial.'' Id. 
at 2779.
    Government bears a heavy burden to justify a substantial burden on 
the exercise of religion. ``[O]nly those interests of the highest order 
. . . can overbalance legitimate claims to the free exercise of 
religion.'' Thomas, 450 U.S. at 718 (quoting Yoder, 406 U.S. at 215). 
Such interests include, for example, the ``fundamental, overriding 
interest in eradicating racial discrimination in education--
discrimination that prevailed, with official approval, for the first 
165 years of this Nation's history,'' Bob Jones Univ. v. United States, 
461 U.S. 574, 604 (1983), and the interest in ensuring the ``mandatory 
and continuous participation'' that is ``indispensable to the fiscal 
vitality of the social security system,'' United States v. Lee, 455 
U.S. 252, 258-59 (1982). But ``broadly formulated interests justifying 
the general applicability of government mandates'' are insufficient. 
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 
418, 431 (2006). The government must establish a compelling interest to 
deny an accommodation to the particular claimant. Id. at 430, 435-38. 
For example, the military may have a compelling interest in its uniform 
and grooming policy to ensure military readiness and protect our 
national security, but it does not necessarily follow that those 
interests would justify denying a particular soldier's request for an 
accommodation from the uniform and grooming policy. See, e.g., 
Secretary of the Army, Army Directive 2017-03, Policy for Brigade-Level 
Approval of Certain Requests for Religious Accommodation (2017) 
(recognizing the ``successful examples of Soldiers currently serving 
with'' an accommodation for ``the wear of a hijab; the wear of a beard; 
and the wear of a turban or under-turban/patka, with uncut beard and 
uncut hair'' and providing for a reasonable accommodation of these 
practices in the Army). The military would have to show that it has a 
compelling interest in denying that particular accommodation. An 
asserted compelling interest in denying an accommodation to a 
particular claimant is undermined by evidence that exemptions or 
accommodations have been granted for other interests. See O Centro, 546 
U.S. at 433, 436-37; see also Hobby Lobby, 134 S. Ct. at 2780.
    The compelling-interest requirement applies even where the 
accommodation sought is ``an exemption from a legal obligation 
requiring [the claimant] to

[[Page 49675]]

confer benefits on third parties.'' Hobby Lobby, 134 S. Ct. at 2781 
n.37. Although ``in applying RFRA `courts must take adequate account of 
the burdens a requested accommodation may impose on nonbeneficiaries,' 
'' the Supreme Court has explained that almost any governmental 
regulation could be reframed as a legal obligation requiring a claimant 
to confer benefits on third parties. Id. (quoting Cutter v. Wilkinson, 
544 U.S. 709, 720 (2005)). As nothing in the text of RFRA admits of an 
exception for laws requiring a claimant to confer benefits on third 
parties, 42 U.S.C. 2000bb-1, and such an exception would have the 
potential to swallow the rule, the Supreme Court has rejected the 
proposition that RFRA accommodations are categorically unavailable for 
laws requiring claimants to confer benefits on third parties. Hobby 
Lobby, 134 S. Ct. at 2781 n.37.
    Even if the government can identify a compelling interest, the 
government must also show that denial of an accommodation is the least 
restrictive means of serving that compelling governmental interest. 
This standard is ``exceptionally demanding.'' Hobby Lobby, 134 S. Ct. 
at 2780. It requires the government to show that it cannot accommodate 
the religious adherent while achieving its interest through a viable 
alternative, which may include, in certain circumstances, expenditure 
of additional funds, modification of existing exemptions, or creation 
of a new program. Id. at 2781. Indeed, the existence of exemptions for 
other individuals or entities that could be expanded to accommodate the 
claimant, while still serving the government's stated interests, will 
generally defeat a RFRA defense, as the government bears the burden to 
establish that no accommodation is viable. See id. at 2781-82.
B. Religious Land Use and Institutionalized Persons Act of 2000 
(RLUIPA)
    Although Congress's leadership in adopting RFRA led many States to 
pass analogous statutes, Congress recognized the unique threat to 
religious liberty posed by certain categories of state action and 
passed the Religious Land Use and Institutionalized Persons Act of 2000 
(RLUIPA) to address them. RLUIPA extends a standard analogous to RFRA 
to state and local government actions regulating land use and 
institutionalized persons where ``the substantial burden is imposed in 
a program or activity that receives Federal financial assistance'' or 
``the substantial burden affects, or removal of that substantial burden 
would affect, commerce with foreign nations, among the several States, 
or with Indian tribes.'' 42 U.S.C. 2000cc(a)(2), 2000cc-1(b).
    RLUIPA's protections must ``be construed in favor of a broad 
protection of religious exercise, to the maximum extent permitted by 
[RLUIPA] and the Constitution.'' Id. Sec.  2000cc-3(g). RLUIPA applies 
to ``any exercise of religion, whether or not compelled by, or central 
to, a system of religious belief,'' id. Sec.  2000cc-5(7)(A), and 
treats ``[t]he use, building, or conversion of real property for the 
purpose of religious exercise'' as the ``religious exercise of the 
person or entity that uses or intends to use the property for that 
purpose,'' id. Sec.  2000cc-5(7)(B). Like RFRA, RLUIPA prohibits 
government from substantially burdening an exercise of religion unless 
imposition of the burden on the religious adherent is the least 
restrictive means of furthering a compelling governmental interest. See 
id. Sec.  2000cc-1(a). That standard ``may require a government to 
incur expenses in its own operations to avoid imposing a substantial 
burden on religious exercise.'' Id. Sec.  2000cc-3(c); cf. Holt v. 
Hobbs, 135 S. Ct. 853, 860, 864-65 (2015).
    With respect to land use in particular, RLUIPA also requires that 
government not ``treat[] a religious assembly or institution on less 
than equal terms with a nonreligious assembly or institution,'' 42 
U.S.C. 2000cc(b)(1), ``impose or implement a land use regulation that 
discriminates against any assembly or institution on the basis of 
religion or religious denomination,'' id. Sec.  2000cc(b)(2), or 
``impose or implement a land use regulation that (A) totally excludes 
religious assemblies from a jurisdiction; or (B) unreasonably limits 
religious assemblies, institutions, or structures within a 
jurisdiction,'' id. Sec.  2000cc(b)(3). A claimant need not show a 
substantial burden on the exercise of religion to enforce these 
antidiscrimination and equal terms provisions listed in Sec.  
2000cc(b). See id. Sec.  2000cc(b); see also Lighthouse Inst. for 
Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 262-64 (3d Cir. 
2007), cert. denied, 553 U.S. 1065 (2008). Although most RLUIPA cases 
involve places of worship like churches, mosques, synagogues, and 
temples, the law applies more broadly to religious schools, religious 
camps, religious retreat centers, and religious social service 
facilities. Letter from U.S. Dep't of Justice Civil Rights Division to 
State, County, and Municipal Officials re: The Religious Land Use and 
Institutionalized Persons Act (Dec. 15, 2016).
C. Other Civil Rights Laws
    To incorporate religious adherents fully into society, Congress has 
recognized that it is not enough to limit governmental action that 
substantially burdens the exercise of religion. It must also root out 
public and private discrimination based on religion. Religious 
discrimination stood alongside discrimination based on race, color, and 
national origin, as an evil to be addressed in the Civil Rights Act of 
1964, and Congress has continued to legislate against such 
discrimination over time. Today, the United States Code includes 
specific prohibitions on religious discrimination in places of public 
accommodation, 42 U.S.C. 2000a; in public facilities, id. Sec.  2000b; 
in public education, id. Sec.  2000c-6; in employment, id. Sec. Sec.  
2000e, 2000e-2, 2000e-16; in the sale or rental of housing, id. Sec.  
3604; in the provision of certain real-estate transaction or brokerage 
services, id. Sec. Sec.  3605, 3606; in federal jury service, 28 U.S.C. 
1862; in access to limited open forums for speech, 20 U.S.C. 4071; and 
in participation in or receipt of benefits from various federally-
funded programs, 15 U.S.C. 3151; 20 U.S.C. 1066c(d), 1071(a)(2), 1087-
4, 7231d(b)(2), 7914; 31 U.S.C. 6711(b)(3); 42 U.S.C. 290cc-33(a)(2), 
300w-7(a)(2), 300x-57(a)(2), 300x-65(f), 604a(g), 708(a)(2), 5057(c), 
5151(a), 5309(a), 6727(a), 9858l(a)(2), 10406(2)(B), 10504(a), 
10604(e), 12635(c)(1), 12832, 13791(g)(3), 13925(b)(13)(A).
    Invidious religious discrimination may be directed at religion in 
general, at a particular religious belief, or at particular aspects of 
religious observance and practice. See, e.g., Church of the Lukumi 
Babalu Aye, 508 U.S. at 532-33. A law drawn to prohibit a specific 
religious practice may discriminate just as severely against a 
religious group as a law drawn to prohibit the religion itself. See id. 
No one would doubt that a law prohibiting the sale and consumption of 
Kosher meat would discriminate against Jewish people. True equality may 
also require, depending on the applicable statutes, an awareness of, 
and willingness reasonably to accommodate, religious observance and 
practice. Indeed, the denial of reasonable accommodations may be little 
more than cover for discrimination against a particular religious 
belief or religion in general and is counter to the general 
determination of Congress that the United States is best served by the 
participation of religious adherents in society, not their withdrawal 
from it.

[[Page 49676]]

1. Employment
i. Protections for Religious Employees
    Protections for religious individuals in employment are the most 
obvious example of Congress's instruction that religious observance and 
practice be reasonably accommodated, not marginalized. In Title VII of 
the Civil Rights Act, Congress declared it an unlawful employment 
practice for a covered employer to (1) ``fail or refuse to hire or to 
discharge any individual, or otherwise . . . discriminate against any 
individual with respect to his compensation, terms, conditions, or 
privileges of employment, because of such individual's . . . 
religion,'' as well as (2) to ``limit, segregate, or classify his 
employees or applicants for employment in any way which would deprive 
or tend to deprive any individual of employment opportunities or 
otherwise adversely affect his status as an employee, because of such 
individual's . . . religion.'' 42 U.S.C. 2000e-2(a); see also 42 U.S.C. 
2000e-16(a) (applying Title VII to certain federal-sector employers); 3 
U.S.C. 411(a) (applying Title VII employment in the Executive Office of 
the President). The protection applies ``regardless of whether the 
discrimination is directed against [members of religious] majorities or 
minorities.'' Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71-
72 (1977).
    After several courts had held that employers did not violate Title 
VII when they discharged employees for refusing to work on their 
Sabbath, Congress amended Title VII to define ``[r]eligion'' broadly to 
include ``all aspects of religious observance and practice, as well as 
belief, unless an employer demonstrates that he is unable to reasonably 
accommodate to an employee's or prospective employee's religious 
observance or practice without undue hardship on the conduct of the 
employer's business.'' 42 U.S.C. 2000e(j); Hardison, 432 U.S. at 74 
n.9. Congress thus made clear that discrimination on the basis of 
religion includes discrimination on the basis of any aspect of an 
employee's religious observance or practice, at least where such 
observance or practice can be reasonably accommodated without undue 
hardship.
    Title VII's reasonable accommodation requirement is meaningful. As 
an initial matter, it requires an employer to consider what adjustment 
or modification to its policies would effectively address the 
employee's concern, for ``[a]n ineffective modification or adjustment 
will not accommodate'' a person's religious observance or practice, 
within the ordinary meaning of that word. See U.S. Airways, Inc. v. 
Barnett, 535 U.S. 391, 400 (2002) (considering the ordinary meaning in 
the context of an ADA claim). Although there is no obligation to 
provide an employee with his or her preferred reasonable accommodation, 
see Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986), an 
employer may justify a refusal to accommodate only by showing that ``an 
undue hardship [on its business] would in fact result from each 
available alternative method of accommodation.'' 29 CFR Sec.  
1605.2(c)(1) (emphasis added). ``A mere assumption that many more 
people, with the same religious practices as the person being 
accommodated, may also need accommodation is not evidence of undue 
hardship.'' Id. Likewise, the fact that an accommodation may grant the 
religious employee a preference is not evidence of undue hardship as, 
``[b]y definition, any special `accommodation' requires the employer to 
treat an employee . . . differently, i.e., preferentially.'' U.S. 
Airways, 535 U.S. at 397; see also E.E.O.C. v. Abercrombie & Fitch 
Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (``Title VII does not demand 
mere neutrality with regard to religious practices--that they may be 
treated no worse than other practices. Rather, it gives them favored 
treatment.'').
    Title VII does not, however, require accommodation at all costs. As 
noted above, an employer is not required to accommodate a religious 
observance or practice if it would pose an undue hardship on its 
business. An accommodation might pose an ``undue hardship,'' for 
example, if it would require the employer to breach an otherwise valid 
collective bargaining agreement, see, e.g., Hardison, 432 U.S. at 79, 
or carve out a special exception to a seniority system, id. at 83; see 
also U.S. Airways, 535 U.S. at 403. Likewise, an accommodation might 
pose an ``undue hardship'' if it would impose ``more than a de minimis 
cost'' on the business, such as in the case of a company where weekend 
work is ``essential to [the] business'' and many employees have 
religious observances that would prohibit them from working on the 
weekends, so that accommodations for all such employees would result in 
significant overtime costs for the employer. Hardison, 432 U.S. at 80, 
84 & n.15. In general, though, Title VII expects positive results for 
society from a cooperative process between an employer and its employee 
``in the search for an acceptable reconciliation of the needs of the 
employee's religion and the exigencies of the employer's business.'' 
Philbrook, 479 U.S. at 69 (internal quotations omitted).
    The area of religious speech and expression is a useful example of 
reasonable accommodation. Where speech or expression is part of a 
person's religious observance and practice, it falls within the scope 
of Title VII. See 42 U.S.C. 2000e, 2000e-2. Speech or expression 
outside of the scope of an individual's employment can almost always be 
accommodated without undue hardship to a business. Speech or expression 
within the scope of an individual's employment, during work hours, or 
in the workplace may, depending upon the facts and circumstances, be 
reasonably accommodated. Cf. Abercrombie, 135 S. Ct. at 2032.
    The federal government's approach to free exercise in the federal 
workplace provides useful guidance on such reasonable accommodations. 
For example, under the Guidelines issued by President Clinton, the 
federal government permits a federal employee to ``keep a Bible or 
Koran on her private desk and read it during breaks''; to discuss his 
religious views with other employees, subject ``to the same rules of 
order as apply to other employee expression''; to display religious 
messages on clothing or wear religious medallions visible to others; 
and to hand out religious tracts to other employees or invite them to 
attend worship services at the employee's church, except to the extent 
that such speech becomes excessive or harassing. Guidelines on 
Religious Exercise and Religious Expression in the Federal Workplace, 
Sec.  1(A), Aug. 14, 1997 (hereinafter ``Clinton Guidelines''). The 
Clinton Guidelines have the force of an Executive Order. See Legal 
Effectiveness of a Presidential Directive, as Compared to an Executive 
Order, 24 Op. O.L.C. 29, 29 (2000) (``[T]here is no substantive 
difference in the legal effectiveness of an executive order and a 
presidential directive that is styled other than as an executive 
order.''); see also Memorandum from President William J. Clinton to the 
Heads of Executive Departments and Agencies (Aug. 14, 1997) (``All 
civilian executive branch agencies, officials, and employees must 
follow these Guidelines carefully.''). The successful experience of the 
federal government in applying the Clinton Guidelines over the last 
twenty years is evidence that religious speech and expression can be 
reasonably accommodated in the workplace without exposing an employer 
to liability under workplace harassment laws.

[[Page 49677]]

    Time off for religious holidays is also often an area of concern. 
The observance of religious holidays is an ``aspect[ ] of religious 
observance and practice'' and is therefore protected by Title VII. 42 
U.S.C. 2000e, 2000e-2. Examples of reasonable accommodations for that 
practice could include a change of job assignments or lateral transfer 
to a position whose schedule does not conflict with the employee's 
religious holidays, 29 CFR 1605.2(d)(1)(iii); a voluntary work schedule 
swap with another employee, id. Sec.  1065.2(d)(1)(i); or a flexible 
scheduling scheme that allows employees to arrive or leave early, use 
floating or optional holidays for religious holidays, or make up time 
lost on another day, id. Sec.  1065.2(d)(1)(ii). Again, the federal 
government has demonstrated reasonable accommodation through its own 
practice: Congress has created a flexible scheduling scheme for federal 
employees, which allows employees to take compensatory time off for 
religious observances, 5 U.S.C. 5550a, and the Clinton Guidelines make 
clear that ``[a]n agency must adjust work schedules to accommodate an 
employee's religious observance--for example, Sabbath or religious 
holiday observance--if an adequate substitute is available, or if the 
employee's absence would not otherwise impose an undue burden on the 
agency,'' Clinton Guidelines Sec.  1(C). If an employer regularly 
permits accommodation in work scheduling for secular conflicts and 
denies such accommodation for religious conflicts, ``such an 
arrangement would display a discrimination against religious practices 
that is the antithesis of reasonableness.'' Philbrook, 479 U.S. at 71.
    Except for certain exceptions discussed in the next section, Title 
VII's protection against disparate treatment, 42 U.S.C. 2000e-2(a)(1), 
is implicated any time religious observance or practice is a motivating 
factor in an employer's covered decision. Abercrombie, 135 S. Ct. at 
2033. That is true even when an employer acts without actual knowledge 
of the need for an accommodation from a neutral policy but with ``an 
unsubstantiated suspicion'' of the same. Id. at 2034.
ii. Protections for Religious Employers
    Congress has acknowledged, however, that religion sometimes is an 
appropriate factor in employment decisions, and it has limited Title 
VII's scope accordingly. Thus, for example, where religion ``is a bona 
fide occupational qualification reasonably necessary to the normal 
operation of [a] particular business or enterprise,'' employers may 
hire and employ individuals based on their religion. 42 U.S.C. 2000e-
2(e)(1). Likewise, where educational institutions are ``owned, 
supported, controlled or managed, [in whole or in substantial part] by 
a particular religion or by a particular religious corporation, 
association, or society'' or direct their curriculum ``toward the 
propagation of a particular religion,'' such institutions may hire and 
employ individuals of a particular religion. Id. And ``a religious 
corporation, association, educational institution, or society'' may 
employ ``individuals of a particular religion to perform work connected 
with the carrying on by such corporation, association, educational 
institution, or society of its activities.'' Id. Sec.  2000e-1(a); 
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day 
Saints v. Amos, 483 U.S. 327, 335-36 (1987).
    Because Title VII defines ``religion'' broadly to include ``all 
aspects of religious observance and practice, as well as belief,'' 42 
U.S.C. 2000e(j), these exemptions include decisions ``to employ only 
persons whose beliefs and conduct are consistent with the employer's 
religious precepts.'' Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 
1991); see also Killinger v. Samford Univ., 113 F.3d 196, 198-200 (11th 
Cir. 1997). For example, in Little, the Third Circuit held that the 
exemption applied to a Catholic school's decision to fire a divorced 
Protestant teacher who, though having agreed to abide by a code of 
conduct shaped by the doctrines of the Catholic Church, married a 
baptized Catholic without first pursuing the official annulment process 
of the Church. 929 F.2d at 946, 951.
    Section 702 broadly exempts from its reach religious corporations, 
associations, educational institutions, and societies. The statute's 
terms do not limit this exemption to non-profit organizations, to 
organizations that carry on only religious activities, or to 
organizations established by a church or formally affiliated therewith. 
See Civil Rights Act of 1964, Sec.  702(a), codified at 42 U.S.C. 
2000e-1(a); see also Hobby Lobby, 134 S. Ct. at 2773-74; Corp. of 
Presiding Bishop, 483 U.S. at 335-36. The exemption applies whenever 
the organization is ``religious,'' which means that it is organized for 
religious purposes and engages in activity consistent with, and in 
furtherance of, such purposes. Br. of Amicus Curiae the U.S. Supp. 
Appellee, Spencer v. World Vision, Inc., No. 08-35532 (9th Cir. 2008). 
Thus, the exemption applies not just to religious denominations and 
houses of worship, but to religious colleges, charitable organizations 
like the Salvation Army and World Vision International, and many more. 
In that way, it is consistent with other broad protections for 
religious entities in federal law, including, for example, the 
exemption of religious entities from many of the requirements under the 
Americans with Disabilities Act. See 28 CFR app. C; 56 Fed. Reg. 35544, 
35554 (July 26, 1991) (explaining that ``[t]he ADA's exemption of 
religious organizations and religious entities controlled by religious 
organizations is very broad, encompassing a wide variety of 
situations'').
    In addition to these explicit exemptions, religious organizations 
may be entitled to additional exemptions from discrimination laws. See, 
e.g., Hosanna-Tabor, 565 U.S. at 180, 188-90. For example, a religious 
organization might conclude that it cannot employ an individual who 
fails faithfully to adhere to the organization's religious tenets, 
either because doing so might itself inhibit the organization's 
exercise of religion or because it might dilute an expressive message. 
Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 649-55 (2000). Both 
constitutional and statutory issues arise when governments seek to 
regulate such decisions.
    As a constitutional matter, religious organizations' decisions are 
protected from governmental interference to the extent they relate to 
ecclesiastical or internal governance matters. Hosanna-Tabor, 565 U.S. 
at 180, 188-90. It is beyond dispute that ``it would violate the First 
Amendment for courts to apply [employment discrimination] laws to 
compel the ordination of women by the Catholic Church or by an Orthodox 
Jewish seminary.'' Id. at 188. The same is true for other employees who 
``minister to the faithful,'' including those who are not themselves 
the head of the religious congregation and who are not engaged solely 
in religious functions. Id. at 188, 190, 194-95; see also Br. of Amicus 
Curiae the U.S. Supp. Appellee, Spencer v. World Vision, Inc., No. 08-
35532 (9th Cir. 2008) (noting that the First Amendment protects ``the 
right to employ staff who share the religious organization's religious 
beliefs'').
    Even if a particular associational decision could be construed to 
fall outside this protection, the government would likely still have to 
show that any interference with the religious organization's 
associational rights is justified under strict scrutiny. See Roberts v. 
U.S. Jaycees, 468 U.S. 609, 623 (1984) (infringements on expressive 
association are subject to strict

[[Page 49678]]

scrutiny); Smith, 494 U.S. at 882 (``[I]t is easy to envision a case in 
which a challenge on freedom of association grounds would likewise be 
reinforced by Free Exercise Clause concerns.''). The government may be 
able to meet that standard with respect to race discrimination, see Bob 
Jones Univ., 461 U.S. at 604, but may not be able to with respect to 
other forms of discrimination. For example, at least one court has held 
that forced inclusion of women into a mosque's religious men's meeting 
would violate the freedom of expressive association. Donaldson v. 
Farrakhan, 762 N.E.2d 835, 840-41 (Mass. 2002). The Supreme Court has 
also held that the government's interest in addressing sexual-
orientation discrimination is not sufficiently compelling to justify an 
infringement on the expressive association rights of a private 
organization. Boy Scouts, 530 U.S. at 659.
    As a statutory matter, RFRA too might require an exemption or 
accommodation for religious organizations from antidiscrimination laws. 
For example, ``prohibiting religious organizations from hiring only 
coreligionists can `impose a significant burden on their exercise of 
religion, even as applied to employees in programs that must, by law, 
refrain from specifically religious activities.''' Application of the 
Religious Freedom Restoration Act to the Award of a Grant Pursuant to 
the Juvenile Justice and Delinquency Prevention Act, 31 Op. O.L.C. 162, 
172 (2007) (quoting Direct Aid to Faith-Based Organizations Under the 
Charitable Choice Provisions of the Community Solutions Act of 2001, 25 
Op. O.L.C. 129, 132 (2001)); see also Corp. of Presiding Bishop, 483 
U.S. at 336 (noting that it would be ``a significant burden on a 
religious organization to require it, on pain of substantial liability, 
to predict which of its activities a secular court w[ould] consider 
religious'' in applying a nondiscrimination provision that applied only 
to secular, but not religious, activities). If an organization 
establishes the existence of such a burden, the government must 
establish that imposing such burden on the organization is the least 
restrictive means of achieving a compelling governmental interest. That 
is a demanding standard and thus, even where Congress has not expressly 
exempted religious organizations from its antidiscrimination laws--as 
it has in other contexts, see, e.g., 42 U.S.C. 3607 (Fair Housing Act), 
12187 (Americans with Disabilities Act)--RFRA might require such an 
exemption.
2. Government Programs
    Protections for religious organizations likewise exist in 
government contracts, grants, and other programs. Recognizing that 
religious organizations can make important contributions to government 
programs, see, e.g., 22 U.S.C. 7601(19), Congress has expressly 
permitted religious organizations to participate in numerous such 
programs on an equal basis with secular organizations, see, e.g., 42 
U.S.C. 290kk-1, 300x-65 604a, 629i. Where Congress has not expressly so 
provided, the President has made clear that ``[t]he Nation's social 
service capacity will benefit if all eligible organizations, including 
faith-based and other neighborhood organizations, are able to compete 
on an equal footing for Federal financial assistance used to support 
social service programs.'' Exec. Order No. 13559, Sec.  1, 75 Fed. Reg. 
71319, 71319 (Nov. 17, 2010) (amending Exec. Order No. 13279, 67 Fed. 
Reg. 77141 (2002)). To that end, no organization may be ``discriminated 
against on the basis of religion or religious belief in the 
administration or distribution of Federal financial assistance under 
social service programs.'' Id. ``Organizations that engage in 
explicitly religious activities (including activities that involve 
overt religious content such as worship, religious instruction, or 
proselytization)'' are eligible to participate in such programs, so 
long as they conduct such activities outside of the programs directly 
funded by the federal government and at a separate time and location. 
Id.
    The President has assured religious organizations that they are 
``eligible to compete for Federal financial assistance used to support 
social service programs and to participate fully in the social services 
programs supported with Federal financial assistance without impairing 
their independence, autonomy, expression outside the programs in 
question, or religious character.'' See id.; see also 42 U.S.C. 290kk-
1(e) (similar statutory assurance). Religious organizations that apply 
for or participate in such programs may continue to carry out their 
mission, ``including the definition, development, practice, and 
expression of . . . religious beliefs,'' so long as they do not use any 
``direct Federal financial assistance'' received ``to support or engage 
in any explicitly religious activities'' such as worship, religious 
instruction, or proselytization. Exec. Order No. 13559, Sec.  1. They 
may also ``use their facilities to provide social services supported 
with Federal financial assistance, without removing or altering 
religious art, icons, scriptures, or other symbols from these 
facilities,'' and they may continue to ``retain religious terms'' in 
their names, select ``board members on a religious basis, and include 
religious references in . . . mission statements and other chartering 
or governing documents.'' Id.
    With respect to government contracts in particular, Executive Order 
13279, 67 Fed. Reg. 77141 (Dec. 12, 2002), confirms that the 
independence and autonomy promised to religious organizations include 
independence and autonomy in religious hiring. Specifically, it 
provides that the employment nondiscrimination requirements in Section 
202 of Executive Order 11246, which normally apply to government 
contracts, do ``not apply to a Government contractor or subcontractor 
that is a religious corporation, association, educational institution, 
or society, with respect to the employment of individuals of a 
particular religion to perform work connected with the carrying on by 
such corporation, association, educational institution, or society of 
its activities.'' Exec. Order No. 13279, Sec.  4, amending Exec. Order 
No. 11246, Sec.  204(c), 30 Fed. Reg. 12319, 12935 (Sept. 24, 1965).
    Because the religious hiring protection in Executive Order 13279 
parallels the Section 702 exemption in Title VII, it should be 
interpreted to protect the decision ``to employ only persons whose 
beliefs and conduct are consistent with the employer's religious 
precepts.'' Little, 929 F.2d at 951. That parallel interpretation is 
consistent with the Supreme Court's repeated counsel that the decision 
to borrow statutory text in a new statute is ``strong indication that 
the two statutes should be interpreted pari passu.'' Northcross v. Bd. 
of Educ. of Memphis City Sch., 412 U.S. 427 (1973) (per curiam); see 
also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich L.P.A., 559 
U.S. 573, 590 (2010). It is also consistent with the Executive Order's 
own usage of discrimination on the basis of ``religion'' as something 
distinct and more expansive than discrimination on the basis of 
``religious belief.'' See, e.g., Exec. Order No. 13279, Sec.  2(c) 
(``No organization should be discriminated against on the basis of 
religion or religious belief . . . '' (emphasis added)); id. Sec.  2(d) 
(``All organizations that receive Federal financial assistance under 
social services programs should be prohibited from discriminating 
against beneficiaries or potential beneficiaries of the social services 
programs on the basis of religion or religious belief. Accordingly, 
organizations, in providing services

[[Page 49679]]

supported in whole or in part with Federal financial assistance, and in 
their outreach activities related to such services, should not be 
allowed to discriminate against current or prospective program 
beneficiaries on the basis of religion, a religious belief, a refusal 
to hold a religious belief, or a refusal to actively participate in a 
religious practice.''). Indeed, because the Executive Order uses ``on 
the basis of religion or religious belief'' in both the provision 
prohibiting discrimination against religious organizations and the 
provision prohibiting discrimination ``against beneficiaries or 
potential beneficiaries,'' a narrow interpretation of the protection 
for religious organizations' hiring decisions would lead to a narrow 
protection for beneficiaries of programs served by such organizations. 
See id. Sec. Sec.  2(c), (d). It would also lead to inconsistencies in 
the treatment of religious hiring across government programs, as some 
program-specific statutes and regulations expressly confirm that ``[a] 
religious organization's exemption provided under section 2000e-1 of 
this title regarding employment practices shall not be affected by its 
participation, or receipt of funds from, a designated program.'' 42 
U.S.C. 290kk-1(e); see also 6 CFR Sec.  19.9 (same).
    Even absent the Executive Order, however, RFRA would limit the 
extent to which the government could condition participation in a 
federal grant or contract program on a religious organization's 
effective relinquishment of its Section 702 exemption. RFRA applies to 
all government conduct, not just to legislation or regulation, see 42 
U.S.C. 2000bb-1, and the Office of Legal Counsel has determined that 
application of a religious nondiscrimination law to the hiring 
decisions of a religious organization can impose a substantial burden 
on the exercise of religion. Application of the Religious Freedom 
Restoration Act to the Award of a Grant, 31 Op. O.L.C. at 172; Direct 
Aid to Faith-Based Organizations, 25 Op. O.L.C. at 132. Given 
Congress's ``recognition that religious discrimination in employment is 
permissible in some circumstances,'' the government will not ordinarily 
be able to assert a compelling interest in prohibiting that conduct as 
a general condition of a religious organization's receipt of any 
particular government grant or contract. Application of the Religious 
Freedom Restoration Act to the Award of a Grant, 31 Op. of O.L.C. at 
186. The government will also bear a heavy burden to establish that 
requiring a particular contractor or grantee effectively to relinquish 
its Section 702 exemption is the least restrictive means of achieving a 
compelling governmental interest. See 42 U.S.C. 2000bb-1.
    The First Amendment also ``supplies a limit on Congress' ability to 
place conditions on the receipt of funds.'' Agency for Int'l Dev. v. 
All. for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2328 (2013) (internal 
quotation marks omitted)). Although Congress may specify the activities 
that it wants to subsidize, it may not ``seek to leverage funding'' to 
regulate constitutionally protected conduct ``outside the contours of 
the program itself.'' See id. Thus, if a condition on participation in 
a government program--including eligibility for receipt of federally 
backed student loans--would interfere with a religious organization's 
constitutionally protected rights, see, e.g., Hosanna-Tabor, 565 U.S. 
at 188-89, that condition could raise concerns under the 
``unconstitutional conditions'' doctrine, see All. for Open Soc'y 
Int'l, Inc., 133 S. Ct. at 2328.
    Finally, Congress has provided an additional statutory protection 
for educational institutions controlled by religious organizations who 
provide education programs or activities receiving federal financial 
assistance. Such institutions are exempt from Title IX's prohibition on 
sex discrimination in those programs and activities where that 
prohibition ``would not be consistent with the religious tenets of such 
organization[s].'' 20 U.S.C. 1681(a)(3). Although eligible institutions 
may ``claim the exemption'' in advance by ``submitting in writing to 
the Assistant Secretary a statement by the highest ranking official of 
the institution, identifying the provisions . . . [that] conflict with 
a specific tenet of the religious organization,'' 34 CFR Sec.  
106.12(b), they are not required to do so to have the benefit of it, 
see 20 U.S.C. 1681.
3. Government Mandates
    Congress has undertaken many similar efforts to accommodate 
religious adherents in diverse areas of federal law. For example, it 
has exempted individuals who, ``by reason of religious training and 
belief,'' are conscientiously opposed to war from training and service 
in the armed forces of the United States. 50 U.S.C. 3806(j). It has 
exempted ``ritual slaughter and the handling or other preparation of 
livestock for ritual slaughter'' from federal regulations governing 
methods of animal slaughter. 7 U.S.C. 1906. It has exempted ``private 
secondary school[s] that maintain [ ] a religious objection to service 
in the Armed Forces'' from being required to provide military 
recruiters with access to student recruiting information. 20 U.S.C. 
7908. It has exempted federal employees and contractors with religious 
objections to the death penalty from being required to ``be in 
attendance at or to participate in any prosecution or execution.'' 18 
U.S.C. 3597(b). It has allowed individuals with religious objections to 
certain forms of medical treatment to opt out of such treatment. See, 
e.g., 33 U.S.C. 907(k); 42 U.S.C. 290bb-36(f). It has created tax 
accommodations for members of religious faiths conscientiously opposed 
to acceptance of the benefits of any private or public insurance, see, 
e.g., 26 U.S.C. 1402(g), 3127, and for members of religious orders 
required to take a vow of poverty, see, e.g., 26 U.S.C. 3121(r).
    Congress has taken special care with respect to programs touching 
on abortion, sterilization, and other procedures that may raise 
religious conscience objections. For example, it has prohibited 
entities receiving certain federal funds for health service programs or 
research activities from requiring individuals to participate in such 
program or activity contrary to their religious beliefs. 42 U.S.C. 
300a-7(d), (e). It has prohibited discrimination against health care 
professionals and entities that refuse to undergo, require, or provide 
training in the performance of induced abortions; to provide such 
abortions; or to refer for such abortions, and it will deem accredited 
any health care professional or entity denied accreditation based on 
such actions. Id. Sec.  238n(a), (b). It has also made clear that 
receipt of certain federal funds does not require an individual ``to 
perform or assist in the performance of any sterilization procedure or 
abortion if [doing so] would be contrary to his religious beliefs or 
moral convictions'' nor an entity to ``make its facilities available 
for the performance of'' those procedures if such performance ``is 
prohibited by the entity on the basis of religious beliefs or moral 
convictions,'' nor an entity to ``provide any personnel for the 
performance or assistance in the performance of'' such procedures if 
such performance or assistance ``would be contrary to the religious 
beliefs or moral convictions of such personnel.'' Id. Sec.  300a-7(b). 
Finally, no ``qualified health plan[s] offered through an Exchange'' 
may discriminate against any health care professional or entity that 
refuses to ``provide, pay for, provide coverage of, or refer for 
abortions,'' Sec.  18023(b)(4); see also Consolidated Appropriations 
Act, 2016, Public Law

[[Page 49680]]

114-113, div. H, Sec.  507(d), 129 Stat. 2242, 2649 (Dec. 18, 2015).
    Congress has also been particularly solicitous of the religious 
freedom of American Indians. In 1978, Congress declared it the ``policy 
of the United States to protect and preserve for American Indians their 
inherent right of freedom to believe, express, and exercise the 
traditional religions of the American Indian, Eskimo, Aleut, and Native 
Hawaiians, including but not limited to access to sites, use and 
possession of sacred objects, and the freedom to worship through 
ceremonials and traditional rites.'' 42 U.S.C. 1996. Consistent with 
that policy, it has passed numerous statutes to protect American 
Indians' right of access for religious purposes to national park lands, 
Scenic Area lands, and lands held in trust by the United States. See, 
e.g., 16 U.S.C. 228i(b), 410aaa-75(a), 460uu-47, 543f, 698v-11(b)(11). 
It has specifically sought to preserve lands of religious significance 
and has required notification to American Indians of any possible harm 
to or destruction of such lands. Id. Sec.  470cc. Finally, it has 
provided statutory exemptions for American Indians' use of otherwise 
regulated articles such as bald eagle feathers and peyote as part of 
traditional religious practice. Id. Sec. Sec.  668a, 4305(d); 42 U.S.C. 
1996a.
    The depth and breadth of constitutional and statutory protections 
for religious observance and practice in America confirm the enduring 
importance of religious freedom to the United States. They also provide 
clear guidance for all those charged with enforcing federal law: The 
free exercise of religion is not limited to a right to hold personal 
religious beliefs or even to worship in a sacred place. It encompasses 
all aspects of religious observance and practice. To the greatest 
extent practicable and permitted by law, such religious observance and 
practice should be reasonably accommodated in all government activity, 
including employment, contracting, and programming. See Zorach v. 
Clauson, 343 U.S. 306, 314 (1952) (``[Government] follows the best of 
our traditions . . . [when it] respects the religious nature of our 
people and accommodates the public service to their spiritual 
needs.'').

[FR Doc. 2017-23269 Filed 10-25-17; 8:45 am]
 BILLING CODE 4410-13-P; 4410-BB-P