49668 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

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). 

Harinder Takyar, M.D., be, and it hereby 

is, revoked. I further order that any 

pending application of Harinder Takyar, 

M.D., to renew or modify this 

registration, as well as any other 

pending application by him for 

registration in the State of Arizona, be, 

and it hereby is, denied. This order is 

effective November 27, 2017. 

Dated: October 18, 2017. 

Robert W. Patterson, 

Acting Administrator. 

[FR Doc. 2017–23338 Filed 10–25–17; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

[OLP Docket No. 165] 

Federal Law Protections for Religious 

Liberty 

AGENCY: Department of Justice. 

ACTION: Notice. 

SUMMARY: This notice provides the text 

of the Attorney General’s Memorandum 

of October 6, 2017, for all executive 

departments and agencies entitled 

‘‘Federal Law Protections for Religious 

Liberty’’ and the appendix to this 

Memorandum. 

DATES: This notice is applicable on 

October 6, 2017. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Dickey, Counsel, Office of Legal 

Policy, U.S. Department of Justice, 950 

Pennsylvania Avenue NW., Washington, 

D.C. 20530, phone (202) 514–4601. 

SUPPLEMENTARY INFORMATION: The 

President instructed the Attorney 

General to issue guidance interpreting 

religious liberty protections in federal 

law, as appropriate. Exec. Order 13798, 

§ 4 (May 4, 2017). Pursuant to that 

instruction and consistent with the 

authority to provide advice and 

opinions on questions of existing law to 

the Executive Branch, the Attorney 

General issued the following 

memorandum to the heads of all 

executive departments and agencies on 

October 6, 2017. 

Dated: October 20, 2017. 

Beth Ann Williams, 

Assistant Attorney General, Office of Legal 

Policy. 

MEMORANDUM FOR ALL EXECUTIVE 

DEPARTMENTS AND AGENCIES 

FROM: THE ATTORNEY GENERAL 

SUBJECT: Federal Law Protections for 

Religious Liberty 

The President has instructed me to 

issue guidance interpreting religious 

liberty protections in federal law, as 

appropriate. Exec. Order No. 13798 § 4, 

82 Fed. Reg. 21675 (May 4, 2017). 

Consistent with that instruction, I am 

issuing this memorandum and appendix 

to guide all administrative agencies and 

executive departments in the execution 

of federal law. 

Principles of Religious Liberty 

Religious liberty is a foundational 

principle of enduring importance in 

America, enshrined in our Constitution 

and other sources of federal law. As 

James Madison explained in his 

Memorial and Remonstrance Against 

Religious Assessments, the free exercise 

of religion ‘‘is in its nature an 

unalienable right’’ because the duty 

owed to one’s Creator ‘‘is precedent, 

both in order of time and in degree of 

obligation, to the claims of Civil 

Society.’’ 1 Religious liberty is not 

merely a right to personal religious 

beliefs or even to worship in a sacred 

place. It also encompasses religious 

observance and practice. Except in the 

narrowest circumstances, no one should 

be forced to choose between living out 

his or her faith and complying with the 

law. Therefore, to the greatest extent 

practicable and permitted by law, 

religious observance and practice 

should be reasonably accommodated in 

all government activity, including 

employment, contracting, and 

programming. The following twenty 

principles should guide administrative 

agencies and executive departments in 

carrying out this task. These principles 

should be understood and interpreted in 

light of the legal analysis set forth in the 

appendix to this memorandum. 

1. The freedom of religion is a 

fundamental right of paramount 

importance, expressly protected by 

federal law. 

Religious liberty is enshrined in the 

text of our Constitution and in 

numerous federal statutes. It 

encompasses the right of all Americans 

to exercise their religion freely, without 

being coerced to join an established 

church or to satisfy a religious test as a 

qualification for public office. It also 

encompasses the right of all Americans 

to express their religious beliefs, subject 

to the same narrow limits that apply to 

all forms of speech. In the United States, 

the free exercise of religion is not a mere 

policy preference to be traded against 

other policy preferences. It is a 

fundamental right. 

2. The free exercise of religion includes 

the right to act or abstain from action 

in accordance with one’s religious 

beliefs. 

The Free Exercise Clause protects not 

just the right to believe or the right to 

worship; it protects the right to perform 

or abstain from performing certain 

physical acts in accordance with one’s 

beliefs. Federal statutes, including the 

Religious Freedom Restoration Act of 

1993 (‘‘RFRA’’), support that protection, 

broadly defining the exercise of religion 

to encompass all aspects of observance 

and practice, whether or not central to, 

or required by, a particular religious 

faith. 

3. The freedom of religion extends to 

persons and organizations. 

The Free Exercise Clause protects not 

just persons, but persons collectively 

exercising their religion through 

churches or other religious 

denominations, religious organizations, 

schools, private associations, and even 

businesses. 

4. Americans do not give up their 

freedom of religion by participating in 

the marketplace, partaking of the 

public square, or interacting with 

government. 

Constitutional protections for 

religious liberty are not conditioned 

upon the willingness of a religious 

person or organization to remain 

separate from civil society. Although the 

application of the relevant protections 

may differ in different contexts, 

individuals and organizations do not 

give up their religious-liberty 

protections by providing or receiving 

social services, education, or healthcare; 

by seeking to earn or earning a living; 

by employing others to do the same; by 

receiving government grants or 

contracts; or by otherwise interacting 

with federal, state, or local governments. 

5. Government may not restrict acts or 

abstentions because of the beliefs they 

display. 

To avoid the very sort of religious 

persecution and intolerance that led to 

the founding of the United States, the 

Free Exercise Clause of the Constitution 

protects against government actions that 

target religious conduct. Except in rare 

circumstances, government may not 

treat the same conduct as lawful when 

undertaken for secular reasons but 

unlawful when undertaken for religious 

reasons. For example, government may 

not attempt to target religious persons or 

conduct by allowing the distribution of 

political leaflets in a park but forbidding 

the distribution of religious leaflets in 

the same park. 


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6. Government may not target religious 

individuals or entities for special 

disabilities based on their religion. 

Much as government may not restrict 

actions only because of religious belief, 

government may not target persons or 

individuals because of their religion. 

Government may not exclude religious 

organizations as such from secular aid 

programs, at least when the aid is not 

being used for explicitly religious 

activities such as worship or 

proselytization. For example, the 

Supreme Court has held that if 

government provides reimbursement for 

scrap tires to replace child playground 

surfaces, it may not deny participation 

in that program to religious schools. Nor 

may government deny religious 

schools—including schools whose 

curricula and activities include religious 

elements—the right to participate in a 

voucher program, so long as the aid 

reaches the schools through 

independent decisions of parents. 

7. Government may not target religious 

individuals or entities through 

discriminatory enforcement of neutral, 

generally applicable laws. 

Although government generally may 

subject religious persons and 

organizations to neutral, generally 

applicable laws—e.g., across-the-board 

criminal prohibitions or certain time, 

place, and manner restrictions on 

speech—government may not apply 

such laws in a discriminatory way. For 

instance, the Internal Revenue Service 

may not enforce the Johnson 

Amendment—which prohibits 501(c)(3) 

non-profit organizations from 

intervening in a political campaign on 

behalf of a candidate—against a 

religious non-profit organization under 

circumstances in which it would not 

enforce the amendment against a secular 

non-profit organization. Likewise, the 

National Park Service may not require 

religious groups to obtain permits to 

hand out fliers in a park if it does not 

require similarly situated secular groups 

to do so, and no federal agency tasked 

with issuing permits for land use may 

deny a permit to an Islamic Center 

seeking to build a mosque when the 

agency has granted, or would grant, a 

permit to similarly situated secular 

organizations or religious groups. 

8. Government may not officially favor 

or disfavor particular religious groups. 

Together, the Free Exercise Clause 

and the Establishment Clause prohibit 

government from officially preferring 

one religious group to another. This 

principle of denominational neutrality 

means, for example, that government 

cannot selectively impose regulatory 

burdens on some denominations but not 

others. It likewise cannot favor some 

religious groups for participation in the 

Combined Federal Campaign over 

others based on the groups’ religious 

beliefs. 

9. Government may not interfere with 

the autonomy of a religious 

organization. 

Together, the Free Exercise Clause 

and the Establishment Clause also 

restrict governmental interference in 

intra-denominational disputes about 

doctrine, discipline, or qualifications for 

ministry or membership. For example, 

government may not impose its 

nondiscrimination rules to require 

Catholic seminaries or Orthodox Jewish 

yeshivas to accept female priests or 

rabbis. 

10. The Religious Freedom Restoration 

Act of 1993 prohibits the federal 

government from substantially 

burdening any aspect of religious 

observance or practice, unless 

imposition of that burden on a 

particular religious adherent satisfies 

strict scrutiny. 

RFRA prohibits the federal 

government from substantially 

burdening a person’s exercise of 

religion, unless the federal government 

demonstrates that application of such 

burden to the religious adherent is the 

least restrictive means of achieving a 

compelling governmental interest. 

RFRA applies to all actions by federal 

administrative agencies, including 

rulemaking, adjudication or other 

enforcement actions, and grant or 

contract distribution and 

administration. 

11. RFRA’s protection extends not just 

to individuals, but also to 

organizations, associations, and at least 

some for-profit corporations. 

RFRA protects the exercise of religion 

by individuals and by corporations, 

companies, associations, firms, 

partnerships, societies, and joint stock 

companies. For example, the Supreme 

Court has held that Hobby Lobby, a 

closely held, for-profit corporation with 

more than 500 stores and 13,000 

employees, is protected by RFRA. 

12. RFRA does not permit the federal 

government to second-guess the 

reasonableness of a religious belief. 

RFRA applies to all sincerely held 

religious beliefs, whether or not central 

to, or mandated by, a particular 

religious organization or tradition. 

Religious adherents will often be 

required to draw lines in the application 

of their religious beliefs, and 

government is not competent to assess 

the reasonableness of such lines drawn, 

nor would it be appropriate for 

government to do so. Thus, for example, 

a government agency may not secondguess 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 secondguess the determination of a religious 

employer that providing contraceptive 

coverage to its employees would make 

the employer complicit in wrongdoing 

in violation of the organization’s 

religious precepts. 

13. A governmental action substantially 

burdens an exercise of religion under 

RFRA if it bans an aspect of an 

adherent’s religious observance or 

practice, compels an act inconsistent 

with that observance or practice, or 

substantially pressures the adherent to 

modify such observance or practice. 

Because the government cannot 

second-guess the reasonableness of a 

religious belief or the adherent’s 

assessment of the religious connection 

between the government mandate and 

the underlying religious belief, the 

substantial burden test focuses on the 

extent of governmental compulsion 

involved. In general, a government 

action that bans an aspect of an 

adherent’s religious observance or 

practice, compels an act inconsistent 

with that observance or practice, or 

substantially pressures the adherent to 

modify such observance or practice, will 

qualify as a substantial burden on the 

exercise of religion. For example, a 

Bureau of Prisons regulation that bans a 

devout Muslim from growing even a 

half-inch beard in accordance with his 

religious beliefs substantially burdens 

his religious practice. Likewise, a 

Department of Health and Human 

Services regulation requiring employers 

to provide insurance coverage for 

contraceptive drugs in violation of their 

religious beliefs or face significant fines 

substantially burdens their religious 

practice, and a law that conditions 

receipt of significant government 

benefits on willingness to work on 

Saturday substantially burdens the 

religious practice of those who, as a 

matter of religious observance or 

practice, do not work on that day. But 

a law that infringes, even severely, an 

aspect of an adherent’s religious 

observance or practice that the adherent 

himself regards as unimportant or 

inconsequential imposes no substantial 


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burden on that adherent. And a law that 

regulates only the government’s internal 

affairs and does not involve any 

governmental compulsion on the 

religious adherent likewise imposes no 

substantial burden. 

14. The strict scrutiny standard 

applicable to RFRA is exceptionally 

demanding. 

Once a religious adherent has 

identified a substantial burden on his or 

her religious belief, the federal 

government can impose that burden on 

the adherent only if it is the least 

restrictive means of achieving a 

compelling governmental interest. Only 

those interests of the highest order can 

outweigh legitimate claims to the free 

exercise of religion, and such interests 

must be evaluated not in broad 

generalities but as applied to the 

particular adherent. Even if the federal 

government could show the necessary 

interest, it would also have to show that 

its chosen restriction on free exercise is 

the least restrictive means of achieving 

that interest. That analysis requires the 

government to show that it cannot 

accommodate the religious adherent 

while achieving its interest through a 

viable alternative, which may include, 

in certain circumstances, expenditure of 

additional funds, modification of 

existing exemptions, or creation of a 

new program. 

15. RFRA applies even where a 

religious adherent seeks an exemption 

from a legal obligation requiring the 

adherent to confer benefits on third 

parties. 

Although burdens imposed on third 

parties are relevant to RFRA analysis, 

the fact that an exemption would 

deprive a third party of a benefit does 

not categorically render an exemption 

unavailable. Once an adherent identifies 

a substantial burden on his or her 

religious exercise, RFRA requires the 

federal government to establish that 

denial of an accommodation or 

exemption to that adherent is the least 

restrictive means of achieving a 

compelling governmental interest. 

16. Title VII of the Civil Rights Act of 

1964, as amended, prohibits covered 

employers from discriminating against 

individuals on the basis of their 

religion. 

Employers covered by Title VII may 

not fail or refuse to hire, discharge, or 

discriminate against any individual 

with respect to compensation, terms, 

conditions, or privileges of employment 

because of that individual’s religion. 

Such employers also may not classify 

their employees or applicants in a way 

that would deprive or tend to deprive 

any individual of employment 

opportunities because of the 

individual’s religion. This protection 

applies regardless of whether the 

individual is a member of a religious 

majority or minority. But the protection 

does not apply in the same way to 

religious employers, who have certain 

constitutional and statutory protections 

for religious hiring decisions. 

17. Title VII’s protection extends to 

discrimination on the basis of religious 

observance or practice as well as belief, 

unless the employer cannot reasonably 

accommodate such observance or 

practice without undue hardship on the 

business. 

Title VII defines ‘‘religion’’ broadly to 

include all aspects of religious 

observance or practice, except when an 

employer can establish that a particular 

aspect of such observance or practice 

cannot reasonably be accommodated 

without undue hardship to the business. 

For example, covered employers are 

required to adjust employee work 

schedules for Sabbath observance, 

religious holidays, and other religious 

observances, unless doing so would 

create an undue hardship, such as 

materially compromising operations or 

violating a collective bargaining 

agreement. Title VII might also require 

an employer to modify a no-headcoverings policy to allow a Jewish 

employee to wear a yarmulke or a 

Muslim employee to wear a headscarf. 

An employer who contends that it 

cannot reasonably accommodate a 

religious observance or practice must 

establish undue hardship on its 

business with specificity; it cannot rely 

on assumptions about hardships that 

might result from an accommodation. 

18. The Clinton Guidelines on Religious 

Exercise and Religious Expression in 

the Federal Workplace provide useful 

examples for private employers of 

reasonable accommodations for 

religious observance and practice in the 

workplace. 

President Clinton issued Guidelines 

on Religious Exercise and Religious 

Expression in the Federal Workplace 

(‘‘Clinton Guidelines’’) explaining that 

federal employees may keep religious 

materials on their private desks and 

read them during breaks; discuss their 

religious views with other employees, 

subject to the same limitations as other 

forms of employee expression; display 

religious messages on clothing or wear 

religious medallions; and invite others 

to attend worship services at their 

churches, except to the extent that such 

speech becomes excessive or harassing. 

The Clinton Guidelines have the force of 

an Executive Order, and they also 

provide useful guidance to private 

employers about ways in which 

religious observance and practice can 

reasonably be accommodated in the 

workplace. 

19. Religious employers are entitled to 

employ only persons whose beliefs and 

conduct are consistent with the 

employers’ religious precepts. 

Constitutional and statutory 

protections apply to certain religious 

hiring decisions. Religious corporations, 

associations, educational institutions, 

and societies—that is, entities that are 

organized for religious purposes and 

engage in activity consistent with, and 

in furtherance of, such purposes—have 

an express statutory exemption from 

Title VII’s prohibition on religious 

discrimination in employment. Under 

that exemption, religious organizations 

may choose to employ only persons 

whose beliefs and conduct are 

consistent with the organizations’ 

religious precepts. For example, a 

Lutheran secondary school may choose 

to employ only practicing Lutherans, 

only practicing Christians, or only those 

willing to adhere to a code of conduct 

consistent with the precepts of the 

Lutheran community sponsoring the 

school. Indeed, even in the absence of 

the Title VII exemption, religious 

employers might be able to claim a 

similar right under RFRA or the 

Religion Clauses of the Constitution. 

20. As a general matter, the federal 

government may not condition receipt 

of a federal grant or contract on the 

effective relinquishment of a religious 

organization’s hiring exemptions or 

attributes of its religious character. 

Religious organizations are entitled to 

compete on equal footing for federal 

financial assistance used to support 

government programs. Such 

organizations generally may not be 

required to alter their religious character 

to participate in a government program, 

nor to cease engaging in explicitly 

religious activities outside the program, 

nor effectively to relinquish their federal 

statutory protections for religious hiring 

decisions. 

Guidance for Implementing Religious 

Liberty Principles 

Agencies must pay keen attention, in 

everything they do, to the foregoing 

principles of religious liberty. 

Agencies as Employers 

Administrative agencies should 

review their current policies and 

practices to ensure that they comply 


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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 subjectmatter experts who can answer 

questions about religious 

nondiscrimination rules, information 

websites that employees may access to 

learn more about their religious 

accommodation rights, and training for 

all employees about federal protections 

for religious observance and practice in 

the workplace. 

Agencies Engaged in Rulemaking 

In formulating rules, regulations, and 

policies, administrative agencies should 

also proactively consider potential 

burdens on the exercise of religion and 

possible accommodations of those 

burdens. Agencies should consider 

designating an officer to review 

proposed rules with religious 

accommodation in mind or developing 

some other process to do so. In 

developing that process, agencies 

should consider drawing upon the 

expertise of the White House Office of 

Faith-Based and Neighborhood 

Partnerships to identify concerns about 

the effect of potential agency action on 

religious exercise. Regardless of the 

process chosen, agencies should ensure 

that they review all proposed rules, 

regulations, and policies that have the 

potential to have an effect on religious 

liberty for compliance with the 

principles of religious liberty outlined 

in this memorandum and appendix 

before finalizing those rules, 

regulations, or policies. The Office of 

Legal Policy will also review any 

proposed agency or executive action 

upon which the Department’s 

comments, opinion, or concurrence are 

sought, see, e.g., Exec. Order 12250 § 1– 

2, 45 Fed. Reg. 72995 (Nov. 2, 1980), to 

ensure that such action complies with 

the principles of religious liberty 

outlined in this memorandum and 

appendix. The Department will not 

concur in any proposed action that does 

not comply with federal law protections 

for religious liberty as interpreted in this 

memorandum and appendix, and it will 

transmit any concerns it has about the 

proposed action to the agency or the 

Office of Management and Budget as 

appropriate. If, despite these internal 

reviews, a member of the public 

identifies a significant concern about a 

prospective rule’s compliance with 

federal protections governing religious 

liberty during a period for public 

comment on the rule, the agency should 

carefully consider and respond to that 

request in its decision. See Perez v. 

Mortgage Bankers Ass’n, 135 S. Ct. 

1199, 1203 (2015). In appropriate 

circumstances, an agency might explain 

that it will consider requests for 

accommodations on a case-by-case basis 

rather than in the rule itself, but the 

agency should provide a reasoned basis 

for that approach. 

Agencies Engaged in Enforcement 

Actions 

Much like administrative agencies 

engaged in rulemaking, agencies 

considering potential enforcement 

actions should consider whether such 

actions are consistent with federal 

protections for religious liberty. In 

particular, agencies should remember 

that RFRA applies to agency 

enforcement just as it applies to every 

other governmental action. An agency 

should consider RFRA when setting 

agency-wide enforcement rules and 

priorities, as well as when making 

decisions to pursue or continue any 

particular enforcement action, and 

when formulating any generally 

applicable rules announced in an 

agency adjudication. 

Agencies should remember that 

discriminatory enforcement of an 

otherwise nondiscriminatory law can 

also violate the Constitution. Thus, 

agencies may not target or single out 

religious organizations or religious 

conduct for disadvantageous treatment 

in enforcement priorities or actions. The 

President identified one area where this 

could be a problem in Executive Order 

13798, when he directed the Secretary 

of the Treasury, to the extent permitted 

by law, not to take any ‘‘adverse action 

against any individual, house of 

worship, or other religious organization 

on the basis that such individual or 

organization speaks or has spoken about 

moral or political issues from a religious 

perspective, where speech of similar 

character’’ from a non-religious 

perspective has not been treated as 

participation or intervention in a 

political campaign. Exec. Order No. 

13798, § 2, 82 Fed. Reg. at 21675. But 

the requirement of nondiscrimination 

toward religious organizations and 

conduct applies across the enforcement 

activities of the Executive Branch, 

including within the enforcement 

components of the Department of 

Justice. 

Agencies Engaged in Contracting and 

Distribution of Grants 

Agencies also must not discriminate 

against religious organizations in their 

contracting or grant-making activities. 

Religious organizations should be given 

the opportunity to compete for 

government grants or contracts and 

participate in government programs on 

an equal basis with nonreligious 

organizations. Absent unusual 

circumstances, agencies should not 

condition receipt of a government 

contract or grant on the effective 

relinquishment of a religious 

organization’s Section 702 exemption 

for religious hiring practices, or any 

other constitutional or statutory 

protection for religious organizations. In 

particular, agencies should not attempt 

through conditions on grants or 

contracts to meddle in the internal 

governance affairs of religious 

organizations or to limit those 

organizations’ otherwise protected 

activities. 

* * * * * 

Any questions about this memorandum 

or the appendix should be addressed to 

the Office of Legal Policy, U.S. 

Department of Justice, 950 Pennsylvania 

Avenue NW., Washington, DC 20530, 

phone (202) 514–4601. 

APPENDIX 

Although not an exhaustive treatment 

of all federal protections for religious 

liberty, this appendix summarizes the 

key constitutional and federal statutory 

protections for religious liberty and sets 

forth the legal basis for the religious 

liberty principles described in the 

foregoing memorandum. 

Constitutional Protections 

The people, acting through their 

Constitution, have singled out religious 

liberty as deserving of unique 

protection. In the original version of the 

Constitution, the people agreed that ‘‘no 

religious Test shall ever be required as 

a Qualification to any Office or public 

Trust under the United States.’’ U.S. 

Const., art. VI, cl. 3. The people then 

amended the Constitution during the 

First Congress to clarify that ‘‘Congress 

shall make no law respecting an 

establishment of religion, or prohibiting 

the free exercise thereof.’’ U.S. Const. 

amend. I, cl. 1. Those protections have 

been incorporated against the States. 

Everson v. Bd. of Educ. of Ewing, 330 

U.S. 1, 15 (1947) (Establishment Clause); 

Cantwell v. Connecticut, 310 U.S. 296, 

303 (1940) (Free Exercise Clause). 


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A. Free Exercise Clause 

The Free Exercise Clause recognizes 

and guarantees Americans the ‘‘right to 

believe and profess whatever religious 

doctrine [they] desire [ ].’’ Empl’t Div. v. 

Smith, 494 U.S. 872, 877 (1990). 

Government may not attempt to regulate 

religious beliefs, compel religious 

beliefs, or punish religious beliefs. See 

id.; see also Sherbert v. Verner, 374 U.S. 

398, 402 (1963); Torcaso v. Watkins, 367 

U.S. 488, 492–93, 495 (1961); United 

States v. Ballard, 322 U.S. 78, 86 (1944). 

It may not lend its power to one side in 

intra-denominational disputes about 

dogma, authority, discipline, or 

qualifications for ministry or 

membership. Hosanna-Tabor 

Evangelical Lutheran Church & Sch. v. 

EEOC, 565 U.S. 171, 185 (2012); Smith, 

494 U.S. at 877; Serbian Eastern 

Orthodox Diocese v. Milivojevich, 426 

U.S. 696, 724–25 (1976); Presbyterian 

Church v. Mary Elizabeth Blue Hull 

Mem’l Presbyterian Church, 393 U.S. 

440, 451 (1969); Kedroff v. St. Nicholas 

Cathedral of the Russian Orthodox 

Church, 344 U.S. 94, 116, 120–21 

(1952). It may not discriminate against 

or impose special burdens upon 

individuals because of their religious 

beliefs or status. Smith, 494 U.S. at 877; 

McDaniel v. Paty, 435 U.S. 618, 627 

(1978). And with the exception of 

certain historical limits on the freedom 

of speech, government may not punish 

or otherwise harass churches, church 

officials, or religious adherents for 

speaking on religious topics or sharing 

their religious beliefs. See Widmar v. 

Vincent, 454 U.S. 263, 269 (1981); see 

also U.S. Const., amend. I, cl. 3. The 

Constitution’s protection against 

government regulation of religious belief 

is absolute; it is not subject to limitation 

or balancing against the interests of the 

government. Smith, 494 U.S. at 877; 

Sherbert, 374 U.S. at 402; see also West 

Virginia State Bd. of Educ. v. Barnette, 

319 U.S. 624, 642 (1943) (‘‘If there is any 

fixed star in our constitutional 

constellation, it is that no official, high 

or petty, can prescribe what shall be 

orthodox in politics, nationalism, 

religion, or other matters of opinion or 

force citizens to confess by word or act 

their faith therein.’’). 

The Free Exercise Clause protects 

beliefs rooted in religion, even if such 

beliefs are not mandated by a particular 

religious organization or shared among 

adherents of a particular religious 

tradition. Frazee v. Illinois Dept. of 

Emp’t Sec., 489 U.S. 829, 833–34 (1989). 

As the Supreme Court has repeatedly 

counseled, ‘‘religious beliefs need not be 

acceptable, logical, consistent, or 

comprehensible to others in order to 

merit First Amendment protection.’’ 

Church of the Lukumi Babalu Aye v. 

Hialeah, 508 U.S. 520, 531 (1993) 

(internal quotation marks omitted). 

They must merely be ‘‘sincerely held.’’ 

Frazee, 489 U.S. at 834. 

Importantly, the protection of the Free 

Exercise Clause also extends to acts 

undertaken in accordance with such 

sincerely-held beliefs. That conclusion 

flows from the plain text of the First 

Amendment, which guarantees the 

freedom to ‘‘exercise’’ religion, not just 

the freedom to ‘‘believe’’ in religion. See 

Smith, 494 U.S. at 877; see also Thomas, 

450 U.S. at 716; Paty, 435 U.S. at 627; 

Sherbert, 374 U.S. at 403–04; Wisconsin 

v. Yoder, 406 U.S. 205, 219–20 (1972). 

Moreover, no other interpretation would 

actually guarantee the freedom of belief 

that Americans have so long regarded as 

central to individual liberty. Many, if 

not most, religious beliefs require 

external observance and practice 

through physical acts or abstention from 

acts. The tie between physical acts and 

religious beliefs may be readily apparent 

(e.g., attendance at a worship service) or 

not (e.g., service to one’s community at 

a soup kitchen or a decision to close 

one’s business on a particular day of the 

week). The ‘‘exercise of religion’’ 

encompasses all aspects of religious 

observance and practice. And because 

individuals may act collectively through 

associations and organizations, it 

encompasses the exercise of religion by 

such entities as well. See, e.g., 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 

of the scope of that protection. First, 

government may not restrict ‘‘acts or 

abstentions only when they are engaged 

in for religious reasons, or only because 

of the religious belief that they display,’’ 

id. at 877, nor ‘‘target the religious for 

special disabilities based on their 

religious status,’’ Trinity Lutheran 

Church of Columbia, Inc. v. Comer, 582 

U.S. ___, ___ (2017) (slip op. at 6) 

(internal quotation marks omitted), for it 

was precisely such ‘‘historical instances 

of religious persecution and intolerance 

that gave concern to those who drafted 

the Free Exercise Clause.’’ Church of the 

Lukumi Babalu Aye, 508 U.S. at 532 

(internal quotation marks omitted). The 

Free Exercise Clause protects against 

‘‘indirect coercion or penalties on the 

free exercise of religion’’ just as surely 

as it protects against ‘‘outright 

prohibitions’’ on religious exercise. 

Trinity Lutheran, 582 U.S. at ___( (slip 

op. at 11) (internal quotation marks 

omitted). ‘‘It is too late in the day to 

doubt that the liberties of religion and 

expression may be infringed by the 

denial of or placing of conditions upon 

a benefit or privilege.’’ Id. (quoting 

Sherbert, 374 U.S. at 404). 

Because a law cannot have as its 

official ‘‘object or purpose . . . the 

suppression of religion or religious 

conduct,’’ courts must ‘‘survey 

meticulously’’ the text and operation of 

a law to ensure that it is actually neutral 

and of general applicability. Church of 

the Lukumi Babalu Aye, 508 U.S. at 

533–34 (internal quotation marks 

omitted). A law is not neutral if it 

singles out particular religious conduct 

for adverse treatment; treats the same 

conduct as lawful when undertaken for 

secular reasons but unlawful when 

undertaken for religious reasons; visits 

‘‘gratuitous restrictions on religious 

conduct’’; or ‘‘accomplishes . . . a 

‘religious gerrymander,’ an 

impermissible attempt to target [certain 

individuals] and their religious 

practices.’’ Id. at 533–35, 538 (internal 

quotation marks omitted). A law is not 

generally applicable if ‘‘in a selective 

manner [it] impose[s] burdens only on 

conduct motivated by religious belief,’’ 

id. at 543, including by ‘‘fail[ing] to 

prohibit nonreligious conduct that 

endangers [its] interests in a similar or 

greater degree than . . . does’’ the 

prohibited conduct, id., or enables, 

expressly or de facto, ‘‘a system of 

individualized exemptions,’’ as 

discussed in Smith, 494 U.S. at 884; see 

also Church of the Lukumi Babalu Aye, 

508 U.S. at 537. 

‘‘Neutrality and general applicability 

are interrelated, . . . [and] failure to 

satisfy one requirement is a likely 

indication that the other has not been 

satisfied.’’ Id. at 531. For example, a law 

that disqualifies a religious person or 

organization from a right to compete for 

a public benefit—including a grant or 

contract—because of the person’s 

religious character is neither neutral nor 

generally applicable. See Trinity 

Lutheran, 582 U.S. at ___–___ (slip op. 

at 9–11). Likewise, a law that selectively 

prohibits the killing of animals for 

religious reasons and fails to prohibit 

the killing of animals for many 

nonreligious reasons, or that selectively 

prohibits a business from refusing to 

stock a product for religious reasons but 

fails to prohibit such refusal for myriad 


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commercial reasons, is neither neutral, 

nor generally applicable. See Church of 

the Lukumi Babalu Aye, 508 U.S. at 

533–36, 542–45. Nonetheless, the 

requirements of neutral and general 

applicability are separate, and any law 

burdening religious practice that fails 

one or both must be subjected to strict 

scrutiny, id. at 546. 

Second, even a neutral, generally 

applicable law is subject to strict 

scrutiny under this Clause if it restricts 

the free exercise of religion and another 

constitutionally protected liberty, such 

as the freedom of speech or association, 

or the right to control the upbringing of 

one’s children. See Smith, 494 U.S. at 

881–82; Axson-Flynn v. Johnson, 356 

F.3d 1277, 1295–97 (10th Cir. 2004). 

Many Free Exercise cases fall in this 

category. For example, a law that seeks 

to compel a private person’s speech or 

expression contrary to his or her 

religious beliefs implicates both the 

freedoms of speech and free exercise. 

See, e.g., Wooley v. Maynard, 430 U.S. 

705, 707–08 (1977) (challenge by 

Jehovah’s Witnesses to requirement that 

state license plates display the motto 

‘‘Live Free or Die’’); Axson-Flynn, 356 

F.3d at 1280 (challenge by Mormon 

student to University requirement that 

student actors use profanity and take 

God’s name in vain during classroom 

acting exercises). A law taxing or 

prohibiting door-to-door solicitation, at 

least as applied to individuals 

distributing religious literature and 

seeking contributions, likewise 

implicates the freedoms of speech and 

free exercise. Murdock v. Pennsylvania, 

319 U.S. 105, 108–09 (1943) (challenge 

by Jehovah’s Witnesses to tax on 

canvassing or soliciting); Cantwell, 310 

U.S. at 307 (same). A law requiring 

children to receive certain education, 

contrary to the religious beliefs of their 

parents, implicates both the parents’ 

right to the care, custody, and control of 

their children and to free exercise. 

Yoder, 406 U.S. at 227–29 (challenge by 

Amish parents to law requiring high 

school attendance). 

Strict scrutiny is the ‘‘most rigorous’’ 

form of scrutiny identified by the 

Supreme Court. Church of the Lukumi 

Babalu Aye, 508 U.S. at 546; see also 

City of Boerne v. Flores, 521 U.S. 507, 

534 (1997) (‘‘Requiring a State to 

demonstrate a compelling interest and 

show that it has adopted the least 

restrictive means of achieving that 

interest is the most demanding test 

known to constitutional law.’’). It is the 

same standard applied to governmental 

classifications based on race, Parents 

Involved in Cmty. Sch. v. Seattle Sch. 

Dist. No. 1, 551 U.S. 701, 720 (2007), 

and restrictions on the freedom of 

speech, Reed v. Town of Gilbert, Ariz., 

135 S. Ct. 2218, 2228 (2015). See Church 

of the Lukumi Babalu Aye, 508 U.S. at 

546–47. Under this level of scrutiny, 

government must establish that a 

challenged law ‘‘advance[s] interests of 

the highest order’’ and is ‘‘narrowly 

tailored in pursuit of those interests.’’ 

Id. at 546 (internal quotation marks 

omitted). ‘‘[O]nly in rare cases’’ will a 

law survive this level of scrutiny. Id. 

Of course, even when a law is neutral 

and generally applicable, government 

may run afoul of the Free Exercise 

Clause if it interprets or applies the law 

in a manner that discriminates against 

religious observance and practice. See, 

e.g., Church of the Lukumi Babalu Aye, 

508 U.S. at 537 (government 

discriminatorily interpreted an 

ordinance prohibiting the unnecessary 

killing of animals as prohibiting only 

killing of animals for religious reasons); 

Fowler v. Rhode Island, 345 U.S. 67, 69– 

70 (1953) (government discriminatorily 

enforced ordinance prohibiting 

meetings in public parks against only 

certain religious groups). The Free 

Exercise Clause, much like the Free 

Speech Clause, requires equal treatment 

of religious adherents. See Trinity 

Lutheran, 582 U.S. at __ (slip op. at 6); 

cf. Good News Club v. Milford Central 

Sch., 533 U.S. 98, 114 (2001) 

(recognizing that Establishment Clause 

does not justify discrimination against 

religious clubs seeking use of public 

meeting spaces); Rosenberger v. Rector 

& Visitors of Univ. of Va., 515 U.S. 819, 

837, 841 (1995) (recognizing that 

Establishment Clause does not justify 

discrimination against religious student 

newspaper’s participation in neutral 

reimbursement program). That is true 

regardless of whether the discriminatory 

application is initiated by the 

government itself or by private requests 

or complaints. See, e.g., Fowler, 345 

U.S. at 69; Niemotko v. Maryland, 340 

U.S. 268, 272 (1951). 

B. Establishment Clause 

The Establishment Clause, too, 

protects religious liberty. It prohibits 

government from establishing a religion 

and coercing Americans to follow it. See 

Town of Greece, N.Y. v. Galloway, 134 

S. Ct. 1811, 1819–20 (2014); Good News 

Club, 533 U.S. at 115. It restricts 

government from interfering in the 

internal governance or ecclesiastical 

decisions of a religious organization. 

Hosanna-Tabor, 565 U.S. at 188–89. 

And it prohibits government from 

officially favoring or disfavoring 

particular religious groups as such or 

officially advocating particular religious 

points of view. See Galloway, 134 S. Ct. 

at 1824; Larson v. Valente, 456 U.S. 228, 

244–46 (1982). Indeed, ‘‘a significant 

factor in upholding governmental 

programs in the face of Establishment 

Clause attack is their neutrality towards 

religion.’’ Rosenberger, 515 U.S. at 839 

(emphasis added). That ‘‘guarantee of 

neutrality is respected, not offended, 

when the government, following neutral 

criteria and evenhanded policies, 

extends benefits to recipients whose 

ideologies and viewpoints, including 

religious ones, are broad and diverse.’’ 

Id. Thus, religious adherents and 

organizations may, like nonreligious 

adherents and organizations, receive 

indirect financial aid through 

independent choice, or, in certain 

circumstances, direct financial aid 

through a secular-aid program. See, e.g., 

Trinity Lutheran, 582 U.S. at ___ (slip. 

op. at 6) (scrap tire program); Zelman v. 

Simmons-Harris, 536 U.S. 639, 652 

(2002) (voucher program). 

C. Religious Test Clause 

Finally, the Religious Test Clause, 

though rarely invoked, provides a 

critical guarantee to religious adherents 

that they may serve in American public 

life. The Clause reflects the judgment of 

the Framers that a diversity of religious 

viewpoints in government would 

enhance the liberty of all Americans. 

And after the Religion Clauses were 

incorporated against the States, the 

Supreme Court shared this view, 

rejecting a Tennessee law that 

‘‘establishe[d] as a condition of office 

the willingness to eschew certain 

protected religious practices.’’ Paty, 435 

U.S. at 632 (Brennan, J., and Marshall, 

J., concurring in judgment); see also id. 

at 629 (plurality op.) (‘‘[T]he American 

experience provides no persuasive 

support for the fear that clergymen in 

public office will be less careful of antiestablishment 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 


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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-1(a). It applies to ‘‘any exercise 

of religion, whether or not compelled 

by, or central to, a system of religious 

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 of 

religion under these principles. 

Sherbert, 374 U.S. at 405–06; see also 

Hobbie v. Unemployment Appeals 

Comm’n of Fla., 480 U.S. 136, 141 

(1987); Thomas, 450 U.S. at 717–18. But 

a law that infringes, even severely, an 

aspect of an adherent’s religious 

observance or practice that the adherent 

himself regards as unimportant or 

inconsequential imposes no substantial 

burden on that adherent. And a law that 

regulates only the government’s internal 

affairs and does not involve any 

governmental compulsion on the 

religious adherent likewise imposes no 

substantial burden. See, e.g., Lyng v. 

Nw. Indian Cemetery Protective Ass’n, 

485 U.S. 439, 448–49 (1988); Bowen v. 

Roy, 476 U.S. 693, 699–700 (1986). 

As with claims under the Free 

Exercise Clause, RFRA does not permit 

a court to inquire into the 

reasonableness of a religious belief, 

including into the adherent’s 

assessment of the religious connection 

between a belief asserted and what the 

government forbids, requires, or 

prevents. Hobby Lobby, 134 S. Ct. at 

2778. If the proffered belief is sincere, 

it is not the place of the government or 

a court to second-guess it. Id. A good 

illustration of the point is Thomas v. 

Review Board of Indiana Employment 

Security Division—one of the Sherbert 

line of cases, whose analytical test 

Congress sought, through RFRA, to 

restore, 42 U.S.C. 2000bb. There, the 

Supreme Court concluded that the 

denial of unemployment benefits was a 

substantial burden on the sincerely held 

religious beliefs of a Jehovah’s Witness 

who had quit his job after he was 

transferred from a department 

producing sheet steel that could be used 

for military armaments to a department 

producing turrets for military tanks. 

Thomas, 450 U.S. at 716–18. In doing 

so, the Court rejected the lower court’s 

inquiry into ‘‘what [the claimant’s] 

belief was and what the religious basis 

of his belief was,’’ noting that no one 

had challenged the sincerity of the 

claimant’s religious beliefs and that 

‘‘[c]ourts should not undertake to 

dissect religious beliefs because the 

believer admits that he is struggling 

with his position or because his beliefs 

are not articulated with the clarity and 

precision that a more sophisticated 

person might employ.’’ Id. at 714–15 

(internal quotation marks omitted). The 

Court likewise rejected the lower court’s 

comparison of the claimant’s views to 

those of other Jehovah’s Witnesses, 

noting that ‘‘[i]ntrafaith differences of 

that kind are not uncommon among 

followers of a particular creed, and the 

judicial process is singularly ill 

equipped to resolve such differences.’’ 

Id. at 715. The Supreme Court 

reinforced this reasoning in Hobby 

Lobby, rejecting the argument that ‘‘the 

connection between what the objecting 

parties [were required to] do (provide 

health-insurance coverage for four 

methods of contraception that may 

operate after the fertilization of an egg) 

and the end that they [found] to be 

morally wrong (destruction of an 

embryo) [wa]s simply too attenuated.’’ 

134 S. Ct. at 2777. The Court explained 

that the plaintiff corporations had a 

sincerely-held religious belief that 

provision of the coverage was morally 

wrong, and it was ‘‘not for us to say that 

their religious beliefs are mistaken or 

insubstantial.’’ Id. at 2779. 

Government bears a heavy burden to 

justify a substantial burden on the 

exercise of religion. ‘‘[O]nly those 

interests of the highest order . . . can 

overbalance legitimate claims to the free 

exercise of religion.’’ Thomas, 450 U.S. 

at 718 (quoting Yoder, 406 U.S. at 215). 

Such interests include, for example, the 

‘‘fundamental, overriding interest in 

eradicating racial discrimination in 

education—discrimination that 

prevailed, with official approval, for the 

first 165 years of this Nation’s history,’’ 

Bob Jones Univ. v. United States, 461 

U.S. 574, 604 (1983), and the interest in 

ensuring the ‘‘mandatory and 

continuous participation’’ that is 

‘‘indispensable to the fiscal vitality of 

the social security system,’’ United 

States v. Lee, 455 U.S. 252, 258–59 

(1982). But ‘‘broadly formulated 

interests justifying the general 

applicability of government mandates’’ 

are insufficient. Gonzales v. O Centro 

Espirita Beneficente Uniao do Vegetal, 

546 U.S. 418, 431 (2006). The 

government must establish a compelling 

interest to deny an accommodation to 

the particular claimant. Id. at 430, 435– 

38. For example, the military may have 

a compelling interest in its uniform and 

grooming policy to ensure military 

readiness and protect our national 

security, but it does not necessarily 

follow that those interests would justify 

denying a particular soldier’s request for 

an accommodation from the uniform 

and grooming policy. See, e.g., Secretary 

of the Army, Army Directive 2017–03, 

Policy for Brigade-Level Approval of 

Certain Requests for Religious 

Accommodation (2017) (recognizing the 

‘‘successful examples of Soldiers 

currently serving with’’ an 

accommodation for ‘‘the wear of a hijab; 

the wear of a beard; and the wear of a 

turban or under-turban/patka, with 

uncut beard and uncut hair’’ and 

providing for a reasonable 

accommodation of these practices in the 

Army). The military would have to 

show that it has a compelling interest in 

denying that particular accommodation. 

An asserted compelling interest in 

denying an accommodation to a 

particular claimant is undermined by 

evidence that exemptions or 

accommodations have been granted for 

other interests. See O Centro, 546 U.S. 

at 433, 436–37; see also Hobby Lobby, 

134 S. Ct. at 2780. 

The compelling-interest requirement 

applies even where the accommodation 

sought is ‘‘an exemption from a legal 

obligation requiring [the claimant] to 


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confer benefits on third parties.’’ Hobby 

Lobby, 134 S. Ct. at 2781 n.37. Although 

‘‘in applying RFRA ‘courts must take 

adequate account of the burdens a 

requested accommodation may impose 

on nonbeneficiaries,’ ’’ the Supreme 

Court has explained that almost any 

governmental regulation could be 

reframed as a legal obligation requiring 

a claimant to confer benefits on third 

parties. Id. (quoting Cutter v. Wilkinson, 

544 U.S. 709, 720 (2005)). As nothing in 

the text of RFRA admits of an exception 

for laws requiring a claimant to confer 

benefits on third parties, 42 U.S.C. 

2000bb–1, and such an exception would 

have the potential to swallow the rule, 

the Supreme Court has rejected the 

proposition that RFRA accommodations 

are categorically unavailable for laws 

requiring claimants to confer benefits on 

third parties. Hobby Lobby, 134 S. Ct. at 

2781 n.37. 

Even if the government can identify a 

compelling interest, the government 

must also show that denial of an 

accommodation is the least restrictive 

means of serving that compelling 

governmental interest. This standard is 

‘‘exceptionally demanding.’’ Hobby 

Lobby, 134 S. Ct. at 2780. It requires the 

government to show that it cannot 

accommodate the religious adherent 

while achieving its interest through a 

viable alternative, which may include, 

in certain circumstances, expenditure of 

additional funds, modification of 

existing exemptions, or creation of a 

new program. Id. at 2781. Indeed, the 

existence of exemptions for other 

individuals or entities that could be 

expanded to accommodate the claimant, 

while still serving the government’s 

stated interests, will generally defeat a 

RFRA defense, as the government bears 

the burden to establish that no 

accommodation is viable. See id. at 

2781–82. 

B. Religious Land Use and 

Institutionalized Persons Act of 2000 

(RLUIPA) 

Although Congress’s leadership in 

adopting RFRA led many States to pass 

analogous statutes, Congress recognized 

the unique threat to religious liberty 

posed by certain categories of state 

action and passed the Religious Land 

Use and Institutionalized Persons Act of 

2000 (RLUIPA) to address them. 

RLUIPA extends a standard analogous 

to RFRA to state and local government 

actions regulating land use and 

institutionalized persons where ‘‘the 

substantial burden is imposed in a 

program or activity that receives Federal 

financial assistance’’ or ‘‘the substantial 

burden affects, or removal of that 

substantial burden would affect, 

commerce with foreign nations, among 

the several States, or with Indian 

tribes.’’ 42 U.S.C. 2000cc(a)(2), 2000cc– 

1(b). 

RLUIPA’s protections must ‘‘be 

construed in favor of a broad protection 

of religious exercise, to the maximum 

extent permitted by [RLUIPA] and the 

Constitution.’’ Id. § 2000cc–3(g). 

RLUIPA applies to ‘‘any exercise of 

religion, whether or not compelled by, 

or central to, a system of religious 

belief,’’ id. § 2000cc–5(7)(A), and treats 

‘‘[t]he use, building, or conversion of 

real property for the purpose of religious 

exercise’’ as the ‘‘religious exercise of 

the person or entity that uses or intends 

to use the property for that purpose,’’ id. 

§ 2000cc–5(7)(B). Like RFRA, RLUIPA 

prohibits government from substantially 

burdening an exercise of religion unless 

imposition of the burden on the 

religious adherent is the least restrictive 

means of furthering a compelling 

governmental interest. See id. § 2000cc– 

1(a). That standard ‘‘may require a 

government to incur expenses in its own 

operations to avoid imposing a 

substantial burden on religious 

exercise.’’ Id. § 2000cc–3(c); cf. Holt v. 

Hobbs, 135 S. Ct. 853, 860, 864–65 

(2015). 

With respect to land use in particular, 

RLUIPA also requires that government 

not ‘‘treat[] a religious assembly or 

institution on less than equal terms with 

a nonreligious assembly or institution,’’ 

42 U.S.C. 2000cc(b)(1), ‘‘impose or 

implement a land use regulation that 

discriminates against any assembly or 

institution on the basis of religion or 

religious denomination,’’ id. 

§ 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 of Long Branch, 

510 F.3d 253, 262–64 (3d Cir. 2007), 

cert. denied, 553 U.S. 1065 (2008). 

Although most RLUIPA cases involve 

places of worship like churches, 

mosques, synagogues, and temples, the 

law applies more broadly to religious 

schools, religious camps, religious 

retreat centers, and religious social 

service facilities. Letter from U.S. Dep’t 

of Justice Civil Rights Division to State, 

County, and Municipal Officials re: The 

Religious Land Use and 

Institutionalized Persons Act (Dec. 15, 

2016). 

C. Other Civil Rights Laws 

To incorporate religious adherents 

fully into society, Congress has 

recognized that it is not enough to limit 

governmental action that substantially 

burdens the exercise of religion. It must 

also root out public and private 

discrimination based on religion. 

Religious discrimination stood 

alongside discrimination based on race, 

color, and national origin, as an evil to 

be addressed in the Civil Rights Act of 

1964, and Congress has continued to 

legislate against such discrimination 

over time. Today, the United States 

Code includes specific prohibitions on 

religious discrimination in places of 

public accommodation, 42 U.S.C. 2000a; 

in public facilities, id. § 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 federally-funded programs, 

15 U.S.C. 3151; 20 U.S.C. 1066c(d), 

1071(a)(2), 1087–4, 7231d(b)(2), 7914; 

31 U.S.C. 6711(b)(3); 42 U.S.C. 290cc– 

33(a)(2), 300w–7(a)(2), 300x–57(a)(2), 

300x–65(f), 604a(g), 708(a)(2), 5057(c), 

5151(a), 5309(a), 6727(a), 9858l(a)(2), 

10406(2)(B), 10504(a), 10604(e), 

12635(c)(1), 12832, 13791(g)(3), 

13925(b)(13)(A). 

Invidious religious discrimination 

may be directed at religion in general, 

at a particular religious belief, or at 

particular aspects of religious 

observance and practice. See, e.g., 

Church of the Lukumi Babalu Aye, 508 

U.S. at 532–33. A law drawn to prohibit 

a specific religious practice may 

discriminate just as severely against a 

religious group as a law drawn to 

prohibit the religion itself. See id. No 

one would doubt that a law prohibiting 

the sale and consumption of Kosher 

meat would discriminate against Jewish 

people. True equality may also require, 

depending on the applicable statutes, an 

awareness of, and willingness 

reasonably to accommodate, religious 

observance and practice. Indeed, the 

denial of reasonable accommodations 

may be little more than cover for 

discrimination against a particular 

religious belief or religion in general 

and is counter to the general 

determination of Congress that the 

United States is best served by the 

participation of religious adherents in 

society, not their withdrawal from it. 


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1. Employment 

i. Protections for Religious Employees 

Protections for religious individuals 

in employment are the most obvious 

example of Congress’s instruction that 

religious observance and practice be 

reasonably accommodated, not 

marginalized. In Title VII of the Civil 

Rights Act, Congress declared it an 

unlawful employment practice for a 

covered employer to (1) ‘‘fail or refuse 

to hire or to discharge any individual, 

or otherwise . . . discriminate against 

any individual with respect to his 

compensation, terms, conditions, or 

privileges of employment, because of 

such individual’s . . . religion,’’ as well 

as (2) to ‘‘limit, segregate, or classify his 

employees or applicants for 

employment in any way which would 

deprive or tend to deprive any 

individual of employment opportunities 

or otherwise adversely affect his status 

as an employee, because of such 

individual’s . . . religion.’’ 42 U.S.C. 

2000e–2(a); see also 42 U.S.C. 2000e– 

16(a) (applying Title VII to certain 

federal-sector employers); 3 U.S.C. 

411(a) (applying Title VII employment 

in the Executive Office of the President). 

The protection applies ‘‘regardless of 

whether the discrimination is directed 

against [members of religious] majorities 

or minorities.’’ Trans World Airlines, 

Inc. v. Hardison, 432 U.S. 63, 71–72 

(1977). 

After several courts had held that 

employers did not violate Title VII 

when they discharged employees for 

refusing to work on their Sabbath, 

Congress amended Title VII to define 

‘‘[r]eligion’’ broadly to include ‘‘all 

aspects of religious observance and 

practice, as well as belief, unless an 

employer demonstrates that he is unable 

to reasonably accommodate to an 

employee’s or prospective employee’s 

religious observance or practice without 

undue hardship on the conduct of the 

employer’s business.’’ 42 U.S.C. 

2000e(j); Hardison, 432 U.S. at 74 n.9. 

Congress thus made clear that 

discrimination on the basis of religion 

includes discrimination on the basis of 

any aspect of an employee’s religious 

observance or practice, at least where 

such observance or practice can be 

reasonably accommodated without 

undue hardship. 

Title VII’s reasonable accommodation 

requirement is meaningful. As an initial 

matter, it requires an employer to 

consider what adjustment or 

modification to its policies would 

effectively address the employee’s 

concern, for ‘‘[a]n ineffective 

modification or adjustment will not 

accommodate’’ a person’s religious 

observance or practice, within the 

ordinary meaning of that word. See U.S. 

Airways, Inc. v. Barnett, 535 U.S. 391, 

400 (2002) (considering the ordinary 

meaning in the context of an ADA 

claim). Although there is no obligation 

to provide an employee with his or her 

preferred reasonable accommodation, 

see Ansonia Bd. of Educ. v. Philbrook, 

479 U.S. 60, 68 (1986), an employer may 

justify a refusal to accommodate only by 

showing that ‘‘an undue hardship [on its 

business] would in fact result from each 

available alternative method of 

accommodation.’’ 29 CFR § 1605.2(c)(1) 

(emphasis added). ‘‘A mere assumption 

that many more people, with the same 

religious practices as the person being 

accommodated, may also need 

accommodation is not evidence of 

undue hardship.’’ Id. Likewise, the fact 

that an accommodation may grant the 

religious employee a preference is not 

evidence of undue hardship as, ‘‘[b]y 

definition, any special ‘accommodation’ 

requires the employer to treat an 

employee . . . differently, i.e., 

preferentially.’’ U.S. Airways, 535 U.S. 

at 397; see also E.E.O.C. v. Abercrombie 

& Fitch Stores, Inc., 135 S. Ct. 2028, 

2034 (2015) (‘‘Title VII does not demand 

mere neutrality with regard to religious 

practices—that they may be treated no 

worse than other practices. Rather, it 

gives them favored treatment.’’). 

Title VII does not, however, require 

accommodation at all costs. As noted 

above, an employer is not required to 

accommodate a religious observance or 

practice if it would pose an undue 

hardship on its business. An 

accommodation might pose an ‘‘undue 

hardship,’’ for example, if it would 

require the employer to breach an 

otherwise valid collective bargaining 

agreement, see, e.g., Hardison, 432 U.S. 

at 79, or carve out a special exception 

to a seniority system, id. at 83; see also 

U.S. Airways, 535 U.S. at 403. Likewise, 

an accommodation might pose an 

‘‘undue hardship’’ if it would impose 

‘‘more than a de minimis cost’’ on the 

business, such as in the case of a 

company where weekend work is 

‘‘essential to [the] business’’ and many 

employees have religious observances 

that would prohibit them from working 

on the weekends, so that 

accommodations for all such employees 

would result in significant overtime 

costs for the employer. Hardison, 432 

U.S. at 80, 84 & n.15. In general, though, 

Title VII expects positive results for 

society from a cooperative process 

between an employer and its employee 

‘‘in the search for an acceptable 

reconciliation of the needs of the 

employee’s religion and the exigencies 

of the employer’s business.’’ Philbrook, 

479 U.S. at 69 (internal quotations 

omitted). 

The area of religious speech and 

expression is a useful example of 

reasonable accommodation. Where 

speech or expression is part of a 

person’s religious observance and 

practice, it falls within the scope of Title 

VII. See 42 U.S.C. 2000e, 2000e–2. 

Speech or expression outside of the 

scope of an individual’s employment 

can almost always be accommodated 

without undue hardship to a business. 

Speech or expression within the scope 

of an individual’s employment, during 

work hours, or in the workplace may, 

depending upon the facts and 

circumstances, be reasonably 

accommodated. Cf. Abercrombie, 135 S. 

Ct. at 2032. 

The federal government’s approach to 

free exercise in the federal workplace 

provides useful guidance on such 

reasonable accommodations. For 

example, under the Guidelines issued 

by President Clinton, the federal 

government permits a federal employee 

to ‘‘keep a Bible or Koran on her private 

desk and read it during breaks’’; to 

discuss his religious views with other 

employees, subject ‘‘to the same rules of 

order as apply to other employee 

expression’’; to display religious 

messages on clothing or wear religious 

medallions visible to others; and to 

hand out religious tracts to other 

employees or invite them to attend 

worship services at the employee’s 

church, except to the extent that such 

speech becomes excessive or harassing. 

Guidelines on Religious Exercise and 

Religious Expression in the Federal 

Workplace, § 1(A), Aug. 14, 1997 

(hereinafter ‘‘Clinton Guidelines’’). The 

Clinton Guidelines have the force of an 

Executive Order. See Legal Effectiveness 

of a Presidential Directive, as Compared 

to an Executive Order, 24 Op. O.L.C. 29, 

29 (2000) (‘‘[T]here is no substantive 

difference in the legal effectiveness of 

an executive order and a presidential 

directive that is styled other than as an 

executive order.’’); see also 

Memorandum from President William J. 

Clinton to the Heads of Executive 

Departments and Agencies (Aug. 14, 

1997) (‘‘All civilian executive branch 

agencies, officials, and employees must 

follow these Guidelines carefully.’’). 

The successful experience of the federal 

government in applying the Clinton 

Guidelines over the last twenty years is 

evidence that religious speech and 

expression can be reasonably 

accommodated in the workplace 

without exposing an employer to 

liability under workplace harassment 

laws. 


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Time off for religious holidays is also 

often an area of concern. The 

observance of religious holidays is an 

‘‘aspect[ ] of religious observance and 

practice’’ and is therefore protected by 

Title VII. 42 U.S.C. 2000e, 2000e–2. 

Examples of reasonable 

accommodations for that practice could 

include a change of job assignments or 

lateral transfer to a position whose 

schedule does not conflict with the 

employee’s religious holidays, 29 CFR 

1605.2(d)(1)(iii); a voluntary work 

schedule swap with another employee, 

id. § 1065.2(d)(1)(i); or a flexible 

scheduling scheme that allows 

employees to arrive or leave early, use 

floating or optional holidays for 

religious holidays, or make up time lost 

on another day, id. § 1065.2(d)(1)(ii). 

Again, the federal government has 

demonstrated reasonable 

accommodation through its own 

practice: Congress has created a flexible 

scheduling scheme for federal 

employees, which allows employees to 

take compensatory time off for religious 

observances, 5 U.S.C. 5550a, and the 

Clinton Guidelines make clear that ‘‘[a]n 

agency must adjust work schedules to 

accommodate an employee’s religious 

observance—for example, Sabbath or 

religious holiday observance—if an 

adequate substitute is available, or if the 

employee’s absence would not 

otherwise impose an undue burden on 

the agency,’’ Clinton Guidelines § 1(C). 

If an employer regularly permits 

accommodation in work scheduling for 

secular conflicts and denies such 

accommodation for religious conflicts, 

‘‘such an arrangement would display a 

discrimination against religious 

practices that is the antithesis of 

reasonableness.’’ Philbrook, 479 U.S. at 

71. 

Except for certain exceptions 

discussed in the next section, Title VII’s 

protection against disparate treatment, 

42 U.S.C. 2000e–2(a)(1), is implicated 

any time religious observance or 

practice is a motivating factor in an 

employer’s covered decision. 

Abercrombie, 135 S. Ct. at 2033. That is 

true even when an employer acts 

without actual knowledge of the need 

for an accommodation from a neutral 

policy but with ‘‘an unsubstantiated 

suspicion’’ of the same. Id. at 2034. 

ii. Protections for Religious Employers 

Congress has acknowledged, however, 

that religion sometimes is an 

appropriate factor in employment 

decisions, and it has limited Title VII’s 

scope accordingly. Thus, for example, 

where religion ‘‘is a bona fide 

occupational qualification reasonably 

necessary to the normal operation of [a] 

particular business or enterprise,’’ 

employers may hire and employ 

individuals based on their religion. 42 

U.S.C. 2000e–2(e)(1). Likewise, where 

educational institutions are ‘‘owned, 

supported, controlled or managed, [in 

whole or in substantial part] by a 

particular religion or by a particular 

religious corporation, association, or 

society’’ or direct their curriculum 

‘‘toward the propagation of a particular 

religion,’’ such institutions may hire 

and employ individuals of a particular 

religion. Id. And ‘‘a religious 

corporation, association, educational 

institution, or society’’ may employ 

‘‘individuals of a particular religion to 

perform work connected with the 

carrying on by such corporation, 

association, educational institution, or 

society of its activities.’’ Id. § 2000e– 

1(a); Corp. of Presiding Bishop of 

Church of Jesus Christ of Latter-Day 

Saints v. Amos, 483 U.S. 327, 335–36 

(1987). 

Because Title VII defines ‘‘religion’’ 

broadly to include ‘‘all aspects of 

religious observance and practice, as 

well as belief,’’ 42 U.S.C. 2000e(j), these 

exemptions include decisions ‘‘to 

employ only persons whose beliefs and 

conduct are consistent with the 

employer’s religious precepts.’’ Little v. 

Wuerl, 929 F.2d 944, 951 (3d Cir. 1991); 

see also Killinger v. Samford Univ., 113 

F.3d 196, 198–200 (11th Cir. 1997). For 

example, in Little, the Third Circuit held 

that the exemption applied to a Catholic 

school’s decision to fire a divorced 

Protestant teacher who, though having 

agreed to abide by a code of conduct 

shaped by the doctrines of the Catholic 

Church, married a baptized Catholic 

without first pursuing the official 

annulment process of the Church. 929 

F.2d at 946, 951. 

Section 702 broadly exempts from its 

reach religious corporations, 

associations, educational institutions, 

and societies. The statute’s terms do not 

limit this exemption to non-profit 

organizations, to organizations that 

carry on only religious activities, or to 

organizations established by a church or 

formally affiliated therewith. See Civil 

Rights Act of 1964, § 702(a), codified at 

42 U.S.C. 2000e–1(a); see also Hobby 

Lobby, 134 S. Ct. at 2773–74; Corp. of 

Presiding Bishop, 483 U.S. at 335–36. 

The exemption applies whenever the 

organization is ‘‘religious,’’ which 

means that it is organized for religious 

purposes and engages in activity 

consistent with, and in furtherance of, 

such purposes. Br. of Amicus Curiae the 

U.S. Supp. Appellee, Spencer v. World 

Vision, Inc., No. 08–35532 (9th Cir. 

2008). Thus, the exemption applies not 

just to religious denominations and 

houses of worship, but to religious 

colleges, charitable organizations like 

the Salvation Army and World Vision 

International, and many more. In that 

way, it is consistent with other broad 

protections for religious entities in 

federal law, including, for example, the 

exemption of religious entities from 

many of the requirements under the 

Americans with Disabilities Act. See 28 

CFR app. C; 56 Fed. Reg. 35544, 35554 

(July 26, 1991) (explaining that ‘‘[t]he 

ADA’s exemption of religious 

organizations and religious entities 

controlled by religious organizations is 

very broad, encompassing a wide 

variety of situations’’). 

In addition to these explicit 

exemptions, religious organizations may 

be entitled to additional exemptions 

from discrimination laws. See, e.g., 

Hosanna-Tabor, 565 U.S. at 180, 188– 

90. For example, a religious 

organization might conclude that it 

cannot employ an individual who fails 

faithfully to adhere to the organization’s 

religious tenets, either because doing so 

might itself inhibit the organization’s 

exercise of religion or because it might 

dilute an expressive message. Cf. Boy 

Scouts of Am. v. Dale, 530 U.S. 640, 

649–55 (2000). Both constitutional and 

statutory issues arise when governments 

seek to regulate such decisions. 

As a constitutional matter, religious 

organizations’ decisions are protected 

from governmental interference to the 

extent they relate to ecclesiastical or 

internal governance matters. HosannaTabor, 565 U.S. at 180, 188–90. It is 

beyond dispute that ‘‘it would violate 

the First Amendment for courts to apply 

[employment discrimination] laws to 

compel the ordination of women by the 

Catholic Church or by an Orthodox 

Jewish seminary.’’ Id. at 188. The same 

is true for other employees who 

‘‘minister to the faithful,’’ including 

those who are not themselves the head 

of the religious congregation and who 

are not engaged solely in religious 

functions. Id. at 188, 190, 194–95; see 

also Br. of Amicus Curiae the U.S. Supp. 

Appellee, Spencer v. World Vision, Inc., 

No. 08–35532 (9th Cir. 2008) (noting 

that the First Amendment protects ‘‘the 

right to employ staff who share the 

religious organization’s religious 

beliefs’’). 

Even if a particular associational 

decision could be construed to fall 

outside this protection, the government 

would likely still have to show that any 

interference with the religious 

organization’s associational rights is 

justified under strict scrutiny. See 

Roberts v. U.S. Jaycees, 468 U.S. 609, 

623 (1984) (infringements on expressive 

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scrutiny); Smith, 494 U.S. at 882 (‘‘[I]t 

is easy to envision a case in which a 

challenge on freedom of association 

grounds would likewise be reinforced 

by Free Exercise Clause concerns.’’). 

The government may be able to meet 

that standard with respect to race 

discrimination, see Bob Jones Univ., 461 

U.S. at 604, but may not be able to with 

respect to other forms of discrimination. 

For example, at least one court has held 

that forced inclusion of women into a 

mosque’s religious men’s meeting 

would violate the freedom of expressive 

association. Donaldson v. Farrakhan, 

762 N.E.2d 835, 840–41 (Mass. 2002). 

The Supreme Court has also held that 

the government’s interest in addressing 

sexual-orientation discrimination is not 

sufficiently compelling to justify an 

infringement on the expressive 

association rights of a private 

organization. Boy Scouts, 530 U.S. at 

659. 

As a statutory matter, RFRA too might 

require an exemption or accommodation 

for religious organizations from 

antidiscrimination laws. For example, 

‘‘prohibiting religious organizations 

from hiring only coreligionists can 

‘impose a significant burden on their 

exercise of religion, even as applied to 

employees in programs that must, by 

law, refrain from specifically religious 

activities.’’’ Application of the Religious 

Freedom Restoration Act to the Award 

of a Grant Pursuant to the Juvenile 

Justice and Delinquency Prevention Act, 

31 Op. O.L.C. 162, 172 (2007) (quoting 

Direct Aid to Faith-Based Organizations 

Under the Charitable Choice Provisions 

of the Community Solutions Act of 

2001, 25 Op. O.L.C. 129, 132 (2001)); see 

also Corp. of Presiding Bishop, 483 U.S. 

at 336 (noting that it would be ‘‘a 

significant burden on a religious 

organization to require it, on pain of 

substantial liability, to predict which of 

its activities a secular court w[ould] 

consider religious’’ in applying a 

nondiscrimination provision that 

applied only to secular, but not 

religious, activities). If an organization 

establishes the existence of such a 

burden, the government must establish 

that imposing such burden on the 

organization is the least restrictive 

means of achieving a compelling 

governmental interest. That is a 

demanding standard and thus, even 

where Congress has not expressly 

exempted religious organizations from 

its antidiscrimination laws—as it has in 

other contexts, see, e.g., 42 U.S.C. 3607 

(Fair Housing Act), 12187 (Americans 

with Disabilities Act)—RFRA might 

require such an exemption. 

2. Government Programs 

Protections for religious organizations 

likewise exist in government contracts, 

grants, and other programs. Recognizing 

that religious organizations can make 

important contributions to government 

programs, see, e.g., 22 U.S.C. 7601(19), 

Congress has expressly permitted 

religious organizations to participate in 

numerous such programs on an equal 

basis with secular organizations, see, 

e.g., 42 U.S.C. 290kk–1, 300x–65 604a, 

629i. Where Congress has not expressly 

so provided, the President has made 

clear that ‘‘[t]he Nation’s social service 

capacity will benefit if all eligible 

organizations, including faith-based and 

other neighborhood organizations, are 

able to compete on an equal footing for 

Federal financial assistance used to 

support social service programs.’’ Exec. 

Order No. 13559, § 1, 75 Fed. Reg. 

71319, 71319 (Nov. 17, 2010) (amending 

Exec. Order No. 13279, 67 Fed. Reg. 

77141 (2002)). To that end, no 

organization may be ‘‘discriminated 

against on the basis of religion or 

religious belief in the administration or 

distribution of Federal financial 

assistance under social service 

programs.’’ Id. ‘‘Organizations that 

engage in explicitly religious activities 

(including activities that involve overt 

religious content such as worship, 

religious instruction, or 

proselytization)’’ are eligible to 

participate in such programs, so long as 

they conduct such activities outside of 

the programs directly funded by the 

federal government and at a separate 

time and location. Id. 

The President has assured religious 

organizations that they are ‘‘eligible to 

compete for Federal financial assistance 

used to support social service programs 

and to participate fully in the social 

services programs supported with 

Federal financial assistance without 

impairing their independence, 

autonomy, expression outside the 

programs in question, or religious 

character.’’ See id.; see also 42 U.S.C. 

290kk–1(e) (similar statutory assurance). 

Religious organizations that apply for or 

participate in such programs may 

continue to carry out their mission, 

‘‘including the definition, development, 

practice, and expression of . . . 

religious beliefs,’’ so long as they do not 

use any ‘‘direct Federal financial 

assistance’’ received ‘‘to support or 

engage in any explicitly religious 

activities’’ such as worship, religious 

instruction, or proselytization. Exec. 

Order No. 13559, § 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. of Educ. of Memphis City Sch., 412 

U.S. 427 (1973) (per curiam); see also 

Jerman v. Carlisle, McNellie, Rini, 

Kramer & Ulrich L.P.A., 559 U.S. 573, 

590 (2010). It is also consistent with the 

Executive Order’s own usage of 

discrimination on the basis of ‘‘religion’’ 

as something distinct and more 

expansive than discrimination on the 

basis of ‘‘religious belief.’’ See, e.g., 

Exec. Order No. 13279, § 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 


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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 of religious hiring across 

government programs, as some programspecific statutes and regulations 

expressly confirm that ‘‘[a] religious 

organization’s exemption provided 

under section 2000e–1 of this title 

regarding employment practices shall 

not be affected by its participation, or 

receipt of funds from, a designated 

program.’’ 42 U.S.C. 290kk–1(e); see 

also 6 CFR § 19.9 (same). 

Even absent the Executive Order, 

however, RFRA would limit the extent 

to which the government could 

condition participation in a federal 

grant or contract program on a religious 

organization’s effective relinquishment 

of its Section 702 exemption. RFRA 

applies to all government conduct, not 

just to legislation or regulation, see 42 

U.S.C. 2000bb–1, and the Office of Legal 

Counsel has determined that application 

of a religious nondiscrimination law to 

the hiring decisions of a religious 

organization can impose a substantial 

burden on the exercise of religion. 

Application of the Religious Freedom 

Restoration Act to the Award of a Grant, 

31 Op. O.L.C. at 172; Direct Aid to 

Faith-Based Organizations, 25 Op. 

O.L.C. at 132. Given Congress’s 

‘‘recognition that religious 

discrimination in employment is 

permissible in some circumstances,’’ the 

government will not ordinarily be able 

to assert a compelling interest in 

prohibiting that conduct as a general 

condition of a religious organization’s 

receipt of any particular government 

grant or contract. Application of the 

Religious Freedom Restoration Act to 

the Award of a Grant, 31 Op. of O.L.C. 

at 186. The government will also bear a 

heavy burden to establish that requiring 

a particular contractor or grantee 

effectively to relinquish its Section 702 

exemption is the least restrictive means 

of achieving a compelling governmental 

interest. See 42 U.S.C. 2000bb–1. 

The First Amendment also ‘‘supplies 

a limit on Congress’ ability to place 

conditions on the receipt of funds.’’ 

Agency for Int’l Dev. v. All. for Open 

Soc’y Int’l, Inc., 133 S. Ct. 2321, 2328 

(2013) (internal quotation marks 

omitted)). Although Congress may 

specify the activities that it wants to 

subsidize, it may not ‘‘seek to leverage 

funding’’ to regulate constitutionally 

protected conduct ‘‘outside the contours 

of the program itself.’’ See id. Thus, if 

a condition on participation in a 

government program—including 

eligibility for receipt of federally backed 

student loans—would interfere with a 

religious organization’s constitutionally 

protected rights, see, e.g., HosannaTabor, 565 U.S. at 188–89, that 

condition could raise concerns under 

the ‘‘unconstitutional conditions’’ 

doctrine, see All. for Open Soc’y Int’l, 

Inc., 133 S. Ct. at 2328. 

Finally, Congress has provided an 

additional statutory protection for 

educational institutions controlled by 

religious organizations who provide 

education programs or activities 

receiving federal financial assistance. 

Such institutions are exempt from Title 

IX’s prohibition on sex discrimination 

in those programs and activities where 

that prohibition ‘‘would not be 

consistent with the religious tenets of 

such organization[s].’’ 20 U.S.C. 

1681(a)(3). Although eligible 

institutions may ‘‘claim the exemption’’ 

in advance by ‘‘submitting in writing to 

the Assistant Secretary a statement by 

the highest ranking official of the 

institution, identifying the provisions 

. . . [that] conflict with a specific tenet 

of the religious organization,’’ 34 CFR 

§ 106.12(b), they are not required to do 

so to have the benefit of it, see 20 U.S.C. 

1681. 

3. Government Mandates 

Congress has undertaken many 

similar efforts to accommodate religious 

adherents in diverse areas of federal 

law. For example, it has exempted 

individuals who, ‘‘by reason of religious 

training and belief,’’ are conscientiously 

opposed to war from training and 

service in the armed forces of the United 

States. 50 U.S.C. 3806(j). It has 

exempted ‘‘ritual slaughter and the 

handling or other preparation of 

livestock for ritual slaughter’’ from 

federal regulations governing methods 

of animal slaughter. 7 U.S.C. 1906. It has 

exempted ‘‘private secondary school[s] 

that maintain [ ] a religious objection to 

service in the Armed Forces’’ from being 

required to provide military recruiters 

with access to student recruiting 

information. 20 U.S.C. 7908. It has 

exempted federal employees and 

contractors with religious objections to 

the death penalty from being required to 

‘‘be in attendance at or to participate in 

any prosecution or execution.’’ 18 

U.S.C. 3597(b). It has allowed 

individuals with religious objections to 

certain forms of medical treatment to 

opt out of such treatment. See, e.g., 33 

U.S.C. 907(k); 42 U.S.C. 290bb–36(f). It 

has created tax accommodations for 

members of religious faiths 

conscientiously opposed to acceptance 

of the benefits of any private or public 

insurance, see, e.g., 26 U.S.C. 1402(g), 

3127, and for members of religious 

orders required to take a vow of poverty, 

see, e.g., 26 U.S.C. 3121(r). 

Congress has taken special care with 

respect to programs touching on 

abortion, sterilization, and other 

procedures that may raise religious 

conscience objections. For example, it 

has prohibited entities receiving certain 

federal funds for health service 

programs or research activities from 

requiring individuals to participate in 

such program or activity contrary to 

their religious beliefs. 42 U.S.C. 300a– 

7(d), (e). It has prohibited 

discrimination against health care 

professionals and entities that refuse to 

undergo, require, or provide training in 

the performance of induced abortions; 

to provide such abortions; or to refer for 

such abortions, and it will deem 

accredited any health care professional 

or entity denied accreditation based on 

such actions. Id. § 238n(a), (b). It has 

also made clear that receipt of certain 

federal funds does not require an 

individual ‘‘to perform or assist in the 

performance of any sterilization 

procedure or abortion if [doing so] 

would be contrary to his religious 

beliefs or moral convictions’’ nor an 

entity to ‘‘make its facilities available for 

the performance of’’ those procedures if 

such performance ‘‘is prohibited by the 

entity on the basis of religious beliefs or 

moral convictions,’’ nor an entity to 

‘‘provide any personnel for the 

performance or assistance in the 

performance of’’ such procedures if 

such performance or assistance ‘‘would 

be contrary to the religious beliefs or 

moral convictions of such personnel.’’ 

Id. § 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, Public Law 


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49680 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

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 of the 

American Indian, Eskimo, Aleut, and 

Native Hawaiians, including but not 

limited to access to sites, use and 

possession of sacred objects, and the 

freedom to worship through 

ceremonials and traditional rites.’’ 42 

U.S.C. 1996. Consistent with that policy, 

it has passed numerous statutes to 

protect American Indians’ right of 

access for religious purposes to national 

park lands, Scenic Area lands, and 

lands held in trust by the United States. 

See, e.g., 16 U.S.C. 228i(b), 410aaa– 

75(a), 460uu–47, 543f, 698v–11(b)(11). It 

has specifically sought to preserve lands 

of religious significance and has 

required notification to American 

Indians of any possible harm to or 

destruction of such lands. Id. § 470cc. 

Finally, it has provided statutory 

exemptions for American Indians’ use of 

otherwise regulated articles such as bald 

eagle feathers and peyote as part of 

traditional religious practice. Id. 

§§ 668a, 4305(d); 42 U.S.C. 1996a. 

The depth and breadth of 

constitutional and statutory protections 

for religious observance and practice in 

America confirm the enduring 

importance of religious freedom to the 

United States. They also provide clear 

guidance for all those charged with 

enforcing federal law: The free exercise 

of religion is not limited to a right to 

hold personal religious beliefs or even 

to worship in a sacred place. It 

encompasses all aspects of religious 

observance and practice. To the greatest 

extent practicable and permitted by law, 

such religious observance and practice 

should be reasonably accommodated in 

all government activity, including 

employment, contracting, and 

programming. See Zorach v. Clauson, 

343 U.S. 306, 314 (1952) 

(‘‘[Government] follows the best of our 

traditions . . . [when it] respects the 

religious nature of our people and 

accommodates the public service to 

their spiritual needs.’’). 

[FR Doc. 2017–23269 Filed 10–25–17; 8:45 am] 

BILLING CODE 4410–13–P; 4410–BB–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Proposed 

Consent Decree Under the Oil 

Pollution Act 

On October 19, 2017, the Department 

of Justice lodged a proposed Consent 

Decree (‘‘Consent Decree’’) with the 

United States District Court for the 

District of Massachusetts in the lawsuit 

entitled United States, et al. v. 

Bouchard Transportation Company, 

Inc., et al., Civil Action No. 1:17–cv– 

12046–NMG. 

The proposed Consent Decree will 

settle claims of the United States (on 

behalf of the Department of Commerce/ 

National Oceanic and Atmospheric 

Administration and the Department of 

the Interior/Fish and Wildlife Service), 

the Commonwealth of Massachusetts, 

and the State of Rhode Island for 

injuries to birds (other than piping 

plover) under the Oil Pollution Act, 33 

U.S.C. 2701, et seq., (‘‘Trustees’’) against 

Bouchard Transportation Company, 

Inc., and related companies 

(‘‘Defendants’’), caused by an oil spill 

from the tank barge Bouchard No. 120 

which occurred in April 2003 in 

Buzzards Bay. Under the proposed 

Consent Decree, the Defendants will pay 

$13,300,000 to the Trustees as damages 

for injuries to wildlife resources, as 

defined in the Consent Decree. The 

payment will be used to plan for and 

implement the restoration, 

rehabilitation, replacement, or 

acquisition of the equivalent of the 

damaged resources. In addition, the 

Defendants acknowledge payment of 

almost $3,500,000 to the Trustees for 

reimbursement of their assessment 

costs. The proposed Consent Decree is 

the second settlement between the 

Trustees and the Defendants for injuries 

to natural resources caused by the oil 

spill. Under the first settlement, entered 

by the District Court in 2011, the 

Defendants paid the Trustees $6,076,393 

for injuries to other natural resources 

caused by the oil spill. 

The publication of this notice opens 

a period for public comment on the 

proposed Consent Decree. Comments 

should be addressed to the Assistant 

Attorney General, Environment and 

Natural Resources Division, and should 

refer to United States, et al. v. Bouchard 

Transportation Company, Inc., et al., 

D.J. Ref. No. 90–5–1–1–08159/1. All 

comments must be submitted no later 

than thirty (30) days after the 

publication date of this notice. 

Comments may be submitted either by 

email or by mail: 

To submit 

comments: Send them to: 

By email ....... pubcomment-ees.enrd@

usdoj.gov. 

By mail ......... Assistant Attorney General, 

U.S. DOJ—ENRD, P.O. 

Box 7611, Washington, DC 

20044–7611. 

During the public comment period, 

the proposed Consent Decree may be 

examined and downloaded at this 

Justice Department Web site: https://

www.justice.gov/enrd/consent-decrees. 

We will provide a paper copy of the 

proposed Consent Decree upon written 

request and payment of reproduction 

costs. Please mail your request and 

payment to: Consent Decree Library, 

U.S. DOJ—ENRD, P.O. Box 7611, 

Washington, DC 20044–7611. 

Please enclose a check or money order 

for $22.75 (25 cents per page 

reproduction cost), payable to the 

United States Treasury. 

Robert E. Maher, Jr., 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FR Doc. 2017–23259 Filed 10–25–17; 8:45 am] 

BILLING CODE 4410–15–P 

DEPARTMENT OF JUSTICE 

Office of Justice Programs 

[OMB Number 1121–0197] 

Agency Information Collection 

Activities; Proposed eCollection 

eComments Requested; Extension of 

Currently Approved Collection 

AGENCY: Office of Justice Programs, 

Department of Justice. 

ACTION: 60 day notice. 

SUMMARY: The Department of Justice, 

Bureau of Justice Assistance, is 

submitting the following information 

collection request to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995. 

DATES: The Department of Justice 

encourages public comment and will 

accept input until December 26, 2017. 

FOR FURTHER INFORMATION CONTACT: If 

you have additional comments 

especially on the estimated public 

burden or associated response time, 

suggestions, or need a copy of the 

proposed information collection 

instrument with instructions or 

additional information, please contact 

Michelle Martin, Senior Management 

Analyst, Bureau of Justice Assistance, 


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