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Wasbtngton, 11.B.(:. 20530 

October 6, 2017 

MEMORANDUM FOR ALL EXECUTIVE DEPART NTS AND AGENCIES 

FROM: THE ATTORNEY GENERA 

SUBJECT: Federal Law Protections for 

The President has instructed me to issue guidance interpreting religious liberty protections 

in federal law, as appropriate. Exec. Order No. 13798 § 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 offederal 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 ofthe legal 

analysis set forth in the appendix to this memorandum. 

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. 

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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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 ofthe 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. 

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 ofreligious 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 
Federal Law Protections for Religious Liberty 

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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. 
Federal Law Protections for Religious Liberty 

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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 ofreligious 

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 himselfregards 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. 
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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 ofreligion, 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 VIl'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 
Federal Law Protections for Religious Liberty 

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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. 
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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 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 FaithBased 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 § 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. 
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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 nonreligious perspective has not been treated as participation or intervention in a political campaign. 

Exec. Order No. 13798, § 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 N.W., Washington, D.C. 20530, 

phone (202) 514-4601. 
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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 ofreligion, 

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). 

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); Kedra.ffv. 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 ofthe government. 

Smith, 494 U.S. at 877; Sherbert, 374 U.S. at 402; see also West Virginia State Bd. ofEduc. 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 ofopinion 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 
Federal Law Protections for Religious Liberty 

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tradition. Frazee v. Illinois Dept. ofEmp '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 ofthe 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., HosannaTabor, 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 ofthe scope ofthat 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 ofthe 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 ofreligion 

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 ofthe 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 
Federal Law Protections for Religious Liberty 

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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 ofthe 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 commercial reasons, is neither neutral, nor generally applicable. See Church ofthe 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 ifit restricts the free exercise ofrelig.ion 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 oftheir 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 ofthe Lukumi Babalu Aye, 508 U.S. at 546; see also City ofBoerne 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 
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restrictions on the freedom of speech, Reedv. Town ofGilbert, 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 ofthe 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 ofreligious 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 ofUniv. ofVa., 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 ofGreece, NY 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 
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ofthe Framers that a diversity ofreligious 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 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. § 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. § 2000bb-l(a). It applies to "any exercise ofreligion, whether or not compelled by, or central 

to, a system ofreligious belief," see§§ 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 ofreligion 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 
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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 ofIndiana Employment Security Division-one ofthe 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 ofthat 

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 ofreligion. 

"[O]nly those interests of the highest order ... can overbalance legitimate claims to the free 

exercise ofreligion." 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. 0 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 
Federal Law Protections for Religious Liberty 

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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 underturban/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 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 non beneficiaries,"' 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 ifthe 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 of2000 (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 ofthat substantial burden would affect, commerce with foreign nations, 

among the several States, or with Indian tribes." 42 U.S.C. §§ 2000cc(a)(2), 2000cc-l(b). 
Federal Law Protections for Religious Liberty 

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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. § 2000cc3(g). RLUIPA applies to "any exercise ofreligion, whether or not compelled by, or central to, a 

system ofreligious belief," id. § 2000cc-5(7)(A), and treats "[t]he use, building, or conversion of 

real property for the purpose ofreligious exercise" as the "religious exercise ofthe person or entity 

that uses or intends to use the property for that purpose," id. § 2000cc-5(7)(B). Like RFRA, 

RLUIP A 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. § 2000cc-l(a). That standard "may require a 

government to incur expenses in its own operations to avoid imposing a substantial burden on 

religious exercise." Id. § 2000cc-3(c); cf Holt v. Hobbs, 135 S. Ct. 853, 860, 864-65 (2015). 

With respect to land use in particular, RLUIP A 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)(l), "impose or implement a land use regulation that 

discriminates against any assembly or institution on the basis of religion or religious 

denomination," id. § 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. § 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 § 2000cc(b ). See id. § 2000cc(b ); see also Lighthouse Inst. for Evangelism, 

Inc. v. City ofLong Branch, 510 F.3d 253, 262-64 (3d Cir. 2007), cert. denied, 553 U.S. 1065 

(2008). Although most RLUIP A 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. § 2000b; in public 

education, id. § 2000c-6; in employment, id. §§ 2000e, 2000e-2, 2000e-16; in the sale or rental of 

housing, id. § 3604; in the provision of certain real-estate transaction or brokerage services, id. 

§§ 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 federallyfunded programs, 15 U.S.C. § 3151; 20 U.S.C. §§ 1066c(d), 1071(a)(2), 1087-4, 723ld(b)(2), 

7914; 31 U.S.C. § 671l(b)(3); 42 U.S.C. §§ 290cc-33(a)(2), 300w-7(a)(2), 300x-57(a)(2), 300x65(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)(l), 12832, 13791(g)(3), 13925(b)(13)(A). 
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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 ofKosher 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 ofreasonable 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. 

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. § 41 l(a) (applying Title VII employment in the Executive Office of the 

President). The protection applies "regardless of whether the discrimination is directed against 

[ members ofreligious] 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 ofreligious 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. § 2000eG); 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 US Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002) (considering the ordinary 
Federal Law Protections for Religious Liberty 

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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. ofEduc. 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 C.F.R. § 1605.2(c)(l) (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." US. Airways, 535 U.S. at 397; see also E.E. 0. 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 US. 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, § l(A), Aug. 14, 1997 (hereinafter "Clinton 
Federal Law Protections for Religious Liberty 

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Guidelines"). The Clinton Guidelines have the force of an Executive Order. See Legal 

Effectiveness ofa 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. 

Time offfor religious holidays is also often an area ofconcern. The observance ofreligious 

holidays is an "aspect[] of religious observance and practice" and is therefore protected by Title 

VIL 42 U.S.C. §§ 2000e, 2000e-2. Examples of reasonable accommodations for that practice 

could include a change ofjob assignments or lateral transfer to a position whose schedule does not 

conflict with the employee's religious holidays, 29 C.F.R. § 1605.2(d)(l)(iii); a voluntary work 

schedule swap with another employee, id. § 1065.2(d)(l)(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. § 1065.2(d)(l)(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 § l(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)(l ), 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)(l). 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 
Federal Law Protections for Religious Liberty 

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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. § 2000e-l(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 ofreligious observance 

and practice, as well as belief," 42 U.S.C. § 2000eG), 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, § 702(a), 

codified at 42 U.S.C. § 2000e-l(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 C.F.R. app. C; 56 Fed. Reg. 35544, 35554 (July 26, 

1991) ( explaining that "[t]he AD A'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 ofAm. 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 
Federal Law Protections for Religious Liberty 

Page 13a 

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. ofAmicus 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. US. Jaycees, 

468 U.S. 609, 623 (1984) (infringements on expressive association are subject to strict 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 ofa 

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 ofits 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 ofsuch 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 
Federal Law Protections for Religious Liberty 

Page 14a 

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, § 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-l(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, § 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, § 4, amending Exec. Order No. 11246, § 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. ofEduc. ofMemphis City Sch., 412 U.S. 427 

(1973) (per curiam); see also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich L.P.A., 559 
Federal Law Protections for Religious Liberty 

Page 15a 

U.S. 573, 590 (2010). It is also consistent with the Executive Order's own usage ofdiscrimination 

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, § 2( c) ("No organization should be 

discriminated against on the basis of religion or religious belief ... " ( emphasis added)); id. § 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 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. §§ 2(c), (d). It would also lead to inconsistencies 

in the treatment ofreligious 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-l(e); see also 

6 C.F.R. § 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 

ofLegal 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 ofthe Religious Freedom Restoration Act to the Award ofa Grant, 31 Op. O.L.C. at 

l 72; 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 ofthe Religious Freedom Restoration Act to the Award ofa 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-l. 

The First Amendment also "supplies a limit on Congress' ability to place conditions on the 

receipt of funds." Agency for Int'! Dev. v. All. for Open Soc'y Int'!, 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 loanswould interfere with a religious organization's constitutionally protected rights, see, e.g., 
Federal Law Protections for Religious Liberty 

Page 16a 

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'!, 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 C.F.R. § 106.12(b), they 

are not required to do so to have the benefit ofit, see 20 U.S.C. § 1681. 

3. Government Mandates 

Congress has undertaken many similar efforts to accommodate religious adherents in 

diverse areas offederal law. For example, it has exempted individuals who, "by reason ofreligious 

training and belief," are conscientiously opposed to war from training and service in the armed 

forces ofthe United States. 50 U.S.C. § 3806G). It has exempted "ritual slaughter and the handling 

or other preparation of livestock for ritual slaughter" from federal regulations governing methods 

ofanimal slaughter. 7 U.S.C. § 1906. It has exempted "private secondary school[ s] that maintain[] 

a religious objection to service in th~ 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(t). 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 

ofreligious 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. 

§ 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 
Federal Law Protections for Religious Liberty 

Page 17a 

personnel." Id. § 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," § 18023(b )( 4); see also Consolidated Appropriations 

Act, 2016, Pub. L. No. 114-113, div. H, § 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 ofthe 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-1 l(b)(l 1). 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. § 470cc. Finally, it has provided statutory exemptions 

for American Indians' use of otherwise regulated articles such as bald eagle feathers and peyote 

as part oftraditional religious practice. Id. §§ 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 ofreligious 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.").