ACLJ Applauds DOJ’s Sweeping New Guidance Directing Every Federal Agency To Protect Our First Freedom

The U.S. Department of Justice has issued sweeping new guidance directing every Executive department and federal agency to respect and protect religious liberty throughout the federal government. This development is most welcome, and the ACLJ applauds the DOJ for directing the entire Executive branch to treat religious exercise as what it is: a fundamental constitutional right.

The guidance, issued July 23 by Acting Attorney General Todd Blanche, updates the Department’s 2017 memorandum to account for nearly a decade of Supreme Court decisions. As Blanche explained, “It is essential that federal agencies fully respect and protect the ability of all Americans to live out their faith in daily life.”

The legal premise is straightforward. As the memorandum explains, religious liberty is not limited to personal belief or worship in a particular place; it encompasses religious observance and practice in daily life. It extends to the right to live, speak, work, raise and educate one’s children, operate a religious institution, and take part in public life consistent with one’s faith. That premise has animated the ACLJ’s work since the very beginning.

Religious Americans Need Not Retreat From Public Life

Officials have too often treated religious exercise as a purely private matter – tolerated so long as it stays quiet and out of sight. The Constitution says otherwise, and the DOJ’s guidance now says so plainly.

The memorandum captures the point in a single sentence: “Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with the government.” Americans do not trade away that right in exchange for a place in public life.

The guidance also recognizes what the Supreme Court recently reaffirmed: The Free Speech and Free Exercise Clauses “work in tandem. Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities.” Government may not permit political leafleting in a park while forbidding religious leafleting. It may not impose permit conditions on religious speakers that comparable secular speakers escape. And it may not silence religious expression because a listener objects. On that last point, the memorandum is explicit: “Religious activity in the public square and private religious expression by government employees cannot be proscribed via heckler’s veto.” Nor does the Establishment Clause oblige officials to scrub religion from public life. The two Religion Clauses operate together: Government may neither establish religion nor discriminate against it.

These are not hypotheticals, and the federal government is no exception. We represented pro-life students and their parents targeted by staff and security officers of the Smithsonian’s National Air and Space Museum over the views on their clothing on the afternoon of the March for Life; we took the museum to court and secured a consent order and injunction barring it from singling out religious and political expression again. We stepped in for a counselor and a student who were given the runaround when they asked to hold a Bible study at a federal Job Corps center run by the Department of Labor. Their request was approved at once after we explained that the First Amendment required it. These episodes involve the kinds of federal actors and religious-liberty concerns that the new guidance addresses.

Although the memorandum directs only the federal government, the constitutional principles it restates bind every level of government – state, county, and municipal alike – through the 14th Amendment. We have intervened where pastors and congregants in Northglenn, Colorado, were criminally cited for peacefully gathering in a public park while comparable secular activity proceeded untouched – and we have taken that fight into federal court. We have defended street preachers arrested in Chicago for sharing the Gospel, a preacher barred from a Houston transit facility by a baseless trespass warning, a preacher in Forest Park, Georgia, whose city-issued sound permit was voided after a single complaint, a church shut out of a public library meeting room, and a congregation denied equal access to a public beach. The message is unmistakable, and it reaches every level of government: Equal access means equal access for religious Americans, and that access is protected by the U.S. Constitution.

Agencies Must Consider Religious Liberty Before They Act

The guidance’s most consequential contribution may be procedural.

Constitutional violations typically arise because agencies treat First Amendment rights as an afterthought. A rule is drafted, an enforcement policy adopted, a grant condition imposed – and only after a citizen objects, or sues, does anyone ask whether religious exercise has been burdened. The memorandum’s instruction is categorical: “Agencies must pay keen attention, in everything they do, to the foregoing principles of religious liberty.” The DOJ then instructs those agencies to reverse the usual sequence. In formulating rules, regulations, and policies, agencies “should proactively consider potential burdens on the exercise of religion and possible accommodations of those burdens” – examining proposed rules for their effect on religious liberty before finalizing them, designating officials accountable for that review, and taking comment-period objections seriously. The Office of Legal Policy has said it will not concur in proposed actions that fail to comply with federal religious-liberty protections.

Litigation remains indispensable. But no citizen should have to file suit to make an agency read the First Amendment.

The memorandum further confirms that the Religious Freedom Restoration Act (RFRA) governs federal rulemaking, adjudication, enforcement, grants, and contracts. It describes RFRA’s strict-scrutiny standard as exceptionally demanding: Where the government substantially burdens religious exercise, it must show that applying that burden to the particular religious person or entity is the least restrictive means of advancing a compelling interest. And the memorandum tells agency officials plainly that they “may be sued in their individual capacities if they violate RFRA and, under certain circumstances, may be required to pay monetary damages to a successful plaintiff.” That is a meaningful incentive to get it right the first time.

Employees, Parents, and Churches

Federal employees do not shed their faith at the office door. They may keep religious materials at their desks, read them on breaks, wear religious dress, discuss their beliefs on the same terms as other workplace speech, and invite colleagues to services – absent coercion or harassment. We have represented a government employee formally reprimanded for quietly keeping a Bible on his desk, and an employee ordered to hide his Bible and cross necklace at work. The memorandum reaffirms the longstanding federal rule that an employee may “keep a Bible or Koran on her private desk and read it during breaks.” The Constitution does not demand religion-free government workplaces; it demands neutrality. The guidance also incorporates Groff v. DeJoy – in which the ACLJ filed at the Supreme Court – rejecting the notion that trivial cost defeats a religious accommodation. Speculation and inconvenience do not establish undue hardship.

Parents retain the right to direct their children’s religious upbringing, and that right does not stop at the schoolhouse door. After Mahmoud v. Taylor – in which the ACLJ filed an amicus brief supporting Muslim, Christian, and Jewish parents – the point should be beyond argument. The memorandum states the rule directly: “Government may not choose to condition the availability of public benefits, such as public schooling, upon parents’ willingness to surrender their religious freedom.” Public education may not be used as leverage against a family’s faith.

The guidance likewise draws a firm constitutional line around church autonomy. “Government may not interfere with the autonomy of a religious organization,” including by dictating doctrine, ministry, membership, or who a religious institution must employ in roles central to its mission. It also directs that religious organizations receive an equal opportunity to compete for federal grants and contracts and may not be forced to choose between participation and their religious character. Equal treatment means access as religious organizations, not on condition that they first become indistinguishable from secular ones. The government may not price a public benefit at the surrender of a constitutional right.

A Course Correction, Not a Conclusion

The guidance does not create religious liberty; the First Amendment does. It does not bind state and local governments, and a future Administration could weaken or rescind it. Executive memoranda are no substitute for legislation or for citizens willing to assert their rights.

None of that diminishes what the guidance accomplishes now. The federal government wields immense authority through regulation, investigation, employment, grants, and enforcement. Requiring agencies to weigh religious liberty at the outset – rather than after the injury – prevents real harm. Over time, it can change a government culture in which religious exercise is too often treated as a problem to be managed rather than a liberty officials are sworn to protect.

We welcome the DOJ’s action, and we will keep defending religious speech, the rights of parents, the consciences of employees, and the autonomy of churches. The memorandum’s first principle deserves the last word: “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.”

Indeed. Religious liberty is not a favor government dispenses. It is a right government exists to secure. Take action with us. Sign our petition: Defeat the Left’s War Against Christians.