October 19, 2017

Photo by Gage Skidmore (CC BY-SA 2.0)

By Rev. Nate Walker, 1791 Delegates Executive Director & MPAC Advisory Council Member

Editor's note: The fear of religious minorities at home and abroad has resulted in the use of religion as a tool for discrimination. On October 6, Attorney General Jeff Sessions issued government-wide guidance that could potentially permit discrimination on the basis of religious belief. MPAC Advisory Council Member Nate Walker analyzed the guidance and identified the memo's six most important points. 

1. Enforce the “No Religious Test for Office”

Attorney General Jeff Sessions, in the 1st principle of the Federal Law Protections for Religious Liberty memo, rightfully states that Americans should not be “coerced… to satisfy a religious test as a qualification for public office” as guaranteed in Article VI of the U.S. Constitution.

Call to Action: In order to enforce this fundamental constitutional guarantee, we charge Attorney General Jeff Sessions on behalf of the U.S. Department of Justice to publicly renounce the statements by Alabama Republican Senate candidate Roy Moore for asking Congress to “prohibit Rep. Keith Ellison from taking the congressional oath” as the first Muslim elected to Congress. 

2. Protect the Right for Religious Assembly

The Attorney General’s 3rd principle states that freedom of religion extends to persons and organizations, reinforcing the idea that people have constitutional protections to form and maintain religious organizations. The 7th principle renounces any federal agency tasked with issuing permits for land use “from denying 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.” The 8th principle forbids the government from favoring or disfavoring particular religious groups.

Call to Action: In advancing this principle, we call upon the Department of Justice to publicly renounce and challenge in court legislative bills and or laws that seek to or have been used to prevent Muslims from forming or maintaining community centers and houses of worship. 

3. End Invidiously Discriminatory Surveillance

The Attorney General’s 6th principle forbids the government from targeting religious individuals or religious organizations because of their religion. The 9th principle prohibits the government from interfering with the autonomy of a religious organization.

Call to Action: We therefore call upon the Attorney General to publicly renounce and challenge in court any private or government surveillance programs that single-out Muslims or mosques. This is not only a breach of the Attorney General’s 6th principle but also the constitutional guarantee to privacy and search and seizure as enshrined in the Fourth Amendment to the U.S. Constitution. 

4. Safeguard Protected Classes of People

The Attorney General’s 6th principle forbids the government from targeting religious individuals or religious organizations because of their religion. We agree with the Attorney General that both the Free Exercise Clause and the Establishment Clause of the First Amendment to the U.S. Constitution restrict government interference with a religious organization’s ability to self-govern and, therefore, should not impose public nondiscrimination rules to private religious organizations. We do not, however, believe that this extends to public businesses that are required by law to uphold non-discrimination public-accommodation laws. The government has a compelling interest to uphold the Fourteenth Amendment to the U.S. Constitution, which prohibits all levels of government from depriving any person of equal protection of the laws.

Call to Action: We call upon the Attorney General to publicly renounce and challenge in court any business that seeks to deny services to anyone based on any protected class defined by law. We are deeply concerned that if a business owner can refuse wedding services to same-sex couples after a state legislature determined that sexual orientation is a protected class, then a business owner could justify not upholding non-discrimination public-accommodation laws based on religion and refuse to serve Muslims at their weddings. 

5. Challenge Pennsylvania’s Anti-Garb Law

The Attorney General’s 2nd principle makes clear that the “free exercise of religion includes the right to act or abstain from action in accordance to one’s religious beliefs.” This “encompasses all aspects of observance and practice, whether or not central to, or required by, a particular religious faith.” The 4th principle states that “constitutional protections for religious liberty are not conditioned upon the willingness of a religious person… to remain separate from civil society.” The 5th principle states that “the Free Exercise Clause of the Constitution protects against government actions that target religious conduct.” The 13th principle states that the government violates the substantial burden test when an agency “bans an aspect of an adherent’s religious observance or practice.”

Call to Action: We call upon the Department of Justice to publicly renounce and challenge in court the constitutionality of Pennsylvania’s General Assembly Anti-Garb Statute 24, §11-1112 that prohibits public school teachers from wearing any religious dress, mark, emblem or insignia. First enacted in 1895, the statute was originally intended to prevent habit-wearing Catholic nuns from teaching in public schools. It has since been used to prevent bonnet-wearing Mennonites and hijab-wearing Muslim teachers from engaging in private acts of devotion in public schools in Pennsylvania. Whether in the workplace or public square, the ability to manifest one’s religion in observance and practice is a constitutional and human right. We charge the Attorney General to notify the Pennsylvania’s General Assembly of the unconstitutionally of their anti-garb law.

6. Protect Religious Liberty in the Workplace

The Attorney General rightfully reaffirms in the 16th principle that the government’s commitment to uphold Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against individuals on the basis of their religion. The 17th principle rightfully states that this protection extends to discrimination on the basis of religious observance or practice. The Attorney General notes that “Title VII might… require an employer to modify a no-head-covering policy to allow a Jewish employee to wear a yarmulke or a Muslim employee to wear a headscarf.” We agree with the Attorney General that “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.”

Call to Action: We call upon the Department of Justice to publicly renounce and challenge in court any business that makes religion or non-religion a prerequisite for employment. We are deeply concerned about the discriminatory trends in Europe where the employment of devout Muslims is being terminated because they wear religious garb and hope the government will do everything in its power to ensure the same trends to not occur in the U.S.