A Breath of Sanity in a Chaotic Week

There is a lot to talk about this week in our wide, wacky world.

For one thing, there is the scandal of Harvey Weinstein’s long-time and widely-known sexual assaults on women. It doesn’t reveal Hollywood’s objectification and sexualization of women – we already knew that. It does, however, shatter the myth that you can make millions of dollars exploiting of women onscreen while still respecting them in person.


Also in the news is Wednesday’s announcement that the Boy Scouts will admit girls. But this, too, is nothing new. The Boy Scouts began admitting girls on January 30, 2017, when they announced that girls who wished to be thought of as boys could join. Wednesday’s announcement only drops the requirement that they first declare their desire to be thought of as boys.

But amid all this mayhem, there was some sanity that deserves our attention. On October 6, 2017 the Justice Department issued a memorandum titled “Federal Law Protections for Religious Liberty.” This memo was released almost five months to the day after the executive order that mandated it.

Since I wrote about that order here (“Executive Order falls short,” Uinta County Herald, May 9, 2017), and was critical of its weakness, I think it only fair to eat my words in public. My concerns centered around the fact that strong language defending the Constitution and the federal laws supporting it had been stripped out of an earlier draft and reassigned to the Departments of Justice, Treasury, and Health and Human Services.

Now that some results of that move have been released, I can see that President Trump was acting on good advice. There is no way he could have been as thorough as the Attorney General’s guidelines. He would have been mercilessly criticized while the Department of Justice would have been scrambling to defend his words.

Instead, the Department of Justice has taken the necessary time and care to produce a document of sound constitutional principles and careful examination of the applicable federal laws. While the usual suspects were quick to condemn the memorandum, their criticisms merely parrot tired talking points, but cannot claim to cite either constitutional language, or federal statute.

The memorandum begins by quoting James Madison, the main author of the Constitution. Two years before penning the Constitution, he laid down our country’s foundation for religious liberty in “Memorial and Remonstrance.”

“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.’”

On this we should all agree: You did not create yourself, neither did the government make you. But whoever made both you and the government was prior to government, and has a more fundamental claim on your loyalty than the government itself. That’s why this right is “unalienable.” Government cannot take from you what government did not give you in the first place.

From this foundation, the memorandum articulates nine principles from the First Amendment of the Constitution. I wish there were room to print them all, but here are a few of the most important points.

First, free exercise “includes the right to act or abstain from action.” It is not only the right to believe, or the right to worship. It is the right to order your concrete, physical life in the public square according to the demands of God as you understand them.

Beginning with a 2009 speech from then Secretary of State Clinton, there has been an attempt to reinterpret the First Amendment to cover only the “freedom to worship.” This was a sleight of hand that had no grounding in the Constitution. The Justice Department has weighed it against the words of the First Amendment and plainly rejected it.

Second, your freedom to act is not limited to the privacy of your own home. It also protects you in the public square. If you want to work with others by incorporating yourselves into organizations, the government cannot deny free exercise to you. So, free exercise is for “religious denominations, schools, private associations, and even businesses.”

As a result, American citizens don’t give up their religious freedoms when they open their doors to the public – whether as a school or business. Nor do they have to stop practicing certain aspects of their religion to be appointed to government office, or participate in a government program.

This also means that the government may not make policies which penalize businesses for following religious practices, nor can it disqualify people or organizations from government benefits like welfare, or school lunches just because of their religious practices.

One of the most important principles is, “8. Government may not officially disfavor particular religious groups. Together, the Free Exercise Clause and the Establishment Clause prohibit government from officially preferring one religious group to another.” This is called the “principle of denominational neutrality.”

It is undeniable that our culture wars have revealed a gaping chasm between old mainline denominations which have modified beliefs with the cultural shifts, and conservative Evangelicals who have not. Moreover, this same divide can be seen within Catholicism and worldwide Anglicanism on issues of sexuality and the sanctity of human life. These are thoroughly denominational differences. As such, the government is not permitted to favor one side or the other.

In recent years, policies, statutes and city ordinances have been written to penalize some of these denominations while rewarding others. Laramie’s “discrimination ordinance” is a case in point. It threatens Evangelical congregations and schools with fines and jail for maintaining religious practices which all denominations held unanimously only a few years ago.

We have also seen in recent confirmation hearings in the Senate that there is a move to ban certain religious denominations from public office. Dianne Feinstein, Dick Durbin and Al Franken want to keep an “orthodox Catholic,” Amy Barrett, out of the federal judiciary, but would be pleased to have her if she were a catholic more like Dick Durbin or Nancy Pelosi.

Bernie Sanders wants to keep a conservative Evangelical out of the Office of Management and Budget, but would be happy to confirm someone who didn’t believe the Bible was inerrant. Here in Wyoming, the Commission on Judicial Conduct and Ethics has no problems with judges of many denominations expressing their religious views, but when Judge Neely of the Lutheran Church expressed hers, she was removed from her judgeship.

All of this is called out as unconstitutional by the Department of Justice. While this memorandum cannot stop the unconstitutional actions of these senators, it has the force of law to stop such injustices from continuing in hundreds of Washington bureaucracies.

These are only a few of the 20 constitutional principles that the memorandum spells out. It goes on to unpack the Religious Freedom Restoration Act of 1993 and Title VII of the Civil Rights Act of 1964. Finally, it commends “The Clinton Guidelines on Religious Exercise and Religious Expression in the Federal Workplace.”

In short, the Justice Department has done an excellent job of summarizing the actual Constitutional and bi-partisan content of our federal protections of religious liberty. I hope that you will be able to look up the document and read all of it. It is a breath of fresh air for all Americans.