Jeff Sessions’ Justice Department Promotes Religious Right’s Take On Religious Liberty

Sen. James Lankford addresses Department of Justice Religious Liberty Summit, July 30, 2018. (Image from livestream of the event.)

On Monday, Attorney General Jeff Sessions hosted a “Religious Liberty Summit” in the Great Hall of the Justice Department, the latest action by the Trump administration to align the federal government with the Religious Right’s interpretation of religious liberty. It was the second week in the row that a Trump administration cabinet official hosted, at a federal government agency building, a gathering focused on religious issues; last week Secretary of State Mike Pompeo convened his counterparts from around the world to discuss freedom of religion.

Monday’s Justice Department event highlighted the extent to which Religious Right advocates have moved into the Trump administration. For example, the first panel was moderated by Kerri Kupec, an attorney who works in the Justice Department’s Office of Public Affairs. Kupec is a graduate of Liberty University’s law school and previously worked at the Alliance Defending Freedom, the Religious Right legal giant that that opposes LGBTQ equality in the U.S. and around the world. (It was ADF that represented Masterpiece Cakeshop in the recent Supreme Court case that reversed an anti-discrimination ruling by the Colorado Civil Rights Commission.)

Acting Associate Attorney General Jesse Panuccio served as the event’s emcee, introducing Attorney General Jeff Sessions with praise for his “bravery and vision.” Session’s remarks may have been the most pointed in terms of the culture war over the scope and meaning of religious liberty. “We’ve gotten to the point where courts have held that morality cannot be a basis for law,” he said, and where ministers are “afraid” to affirm “holy writ from the pulpit.”

“Let’s be frank,” Sessions said. “A dangerous movement, undetected by many, but real, is now challenging and eroding a great tradition of religious freedom.” He said this movement “must be confronted intellectually and politically and defeated.” Sessions said he believes that “unease” among the American people about the changing cultural climate—which he said has become less hospitable to people of faith—is one of the reasons Trump was elected, citing Trump’s declaration that in his America, Americans would “say Merry Christmas again.”

Sessions announced the creation of a religious liberty task force to be chaired by Panuccio and Beth Wilson, assistant attorney general in the Office of Legal Policy. The task force, he said, will help the DOJ fully implement the guidance on religious liberty that Sessions issued in October.

Sessions introduced Archbishop Joseph Kurtz from Louisville, president of the U.S. Conference of Catholic Bishops from 2013 to 2016 and current chair of its religious liberty committee. Kurtz was among the original signers of the Manhattan Declaration, a 2009 culture war document declaring a refusal to compromise on abortion or marriage equality, and framing both in religious liberty terms. Signatories included some of the Religious Right’s leading lights, including Gary Bauer, Marjorie Dannenfelser, James Dobson, Dinesh D’Souza and Tony Perkins.

At the DOJ, Kurtz praised the Trump administration for its actions on religious liberty and called for government to allow Catholic and other religious groups to “serve with integrity” while partnering with the government to address social needs. One of the bishops’ biggest concerns, he said, is “the ability of our child-welfare providers to continue to be able to place children with foster and adoptive families consistent with our teaching”—in other words to deny placement with same-sex couples. Kurtz criticized cities and states that hold religious providers to nondiscrimination laws, saying that “intolerance for religious views” hurts vulnerable children by preventing religious agencies from finding them homes.

The event featured two groups of panelists, some presenting on issues that would bring agreement from progressive religious liberty advocates—such as the full legal equality of Muslim Americans and the ability of congregations to build houses of worship —while others were focused on more divisive issues, including the Religious Right’s efforts to carve out broad religious exemptions from nondiscrimination laws.

The panel hosted by Kupec included a rabbi from Boca Raton whose congregation has been fighting to overcome local opposition to its efforts to buy land and put up a building; the baker at the center of the Masterpiece Cakeshop case; a Sikh activist; a woman who turned to a Christian adoption agency when she was a pregnant teen who now works for the same agency; and the cofounder and principal of Christian schools in Washington, D.C.

The second panel was hosted by Acting Assistant Attorney General John Gore; panelists included Shay Dvoretsky, a partner at Jones Day; Asma Uddin, a faculty member with the Religious Freedom Center; Emilie Kao, director of the DeVos Center for Religion and Civil Society at the Heritage Foundation; and law professor Michael McConnell, a former judge who opened a religious liberty law clinic at Stanford five years ago with $1.6 million steered his way by the culture warriors at Becket, the pro-bono law firm behind Burwell v. Hobby Lobby, which successfully challenged the Affordable Care Act’s contraception mandate for businesses whose proprietors took issue with the provision on religious grounds.

Michael McConnell talked about the First Amendment’s Establishment and Free Exercise clauses, saying that when he was at the Justice Department, the Supreme Court talked about these two clauses being in tension, which McConnell said was mostly because the court had “so screwed up the interpretation of the First Amendment” based on its reading of the Establishment Clause to mean that the government should not advance religion. McConnell praised the “almost a 180-degree turn” the court has made over the past 30 years regarding the constitutionality of including religious organizations in “neutral” government programs. He also praised the court’s direction in the favor of broad religious accommodations, as it did in the Hobby Lobby case.

The Heritage Foundation’s Kao talked about religious persecution overseas and warned of the possibility of similar developments in the U.S. “We would like to think these patterns could never become widespread in America,” she said, “but they can happen anywhere activists promote a radical ideology of punishing nonconformists.” She warned against “increasing social ostracization” of those in the U.S. who do not embrace “new definitions of marriage, family, and biological sex.”

Uddin addressed the growing political and legal use of the idea that Islam is not a religion but a political ideology not worthy of First Amendment protection, which she called “one of the biggest threats facing the rights of American Muslims today and also a major threat to the First Amendment protections of all Americans.” This is indeed a pernicious movement, but Uddin did not highlight the fact that the main promoters of this anti-Muslim and anti-religious-freedom ideology are Trump administration allies in the Religious Right and the secular anti-Muslim right.

Most of the panelists in the second group agreed that the issue of accommodations is currently the most contentious of religious liberty debates. McConnell oted—and disagreed with—the line of reasoning that accommodations are unconstitutional if they cause third-party harm. Kao criticized the argument of equality advocates that allowing religious social service providers to refuse to work with gay couples creates “dignitary harm” for those couples. Throughout history, she said, “we have always protected the right of people to follow their religious beliefs” but “never protected the right to not have your feelings hurt.”

The event ended with Deputy Attorney General Rod Rosenstein making brief remarks and introducing Sen. James Lankford. Lankford has been active in religious liberty culture wars, attending the January 2018 launch of a new division of the Department of Health and Human services focused on defending medical personnel who refuse to participate in treatments they say conflict with their religious beliefs. At the DOJ event, Lankford called for the passage of legislation sought by Religious Right activists, including the Conscience Protection Act, which would allow health-care professionals to sue any employer or entity that involved them in taking part in an abortion against their conscience, and  the Child Welfare Provider Inclusion Act, which would forbid any “adverse action” by the government against any child-placement entity receiving government funds that refused to place children with same-sex couples because of “sincerely held religious beliefs or moral convictions.” Lankford also called for repeal of the Johnson Amendment, which allows a tax exemption only to churches and houses of worship that refrain from participating in electioneering.