Written by Don Byrd
An updated manual issued this week by the Justice Department instructs U.S. Attorneys’ offices to consult Attorney General Jeff Sessions’ Principles of Religious Liberty, previously published in his October 2017 memo, according to a DOJ press release issued Wednesday. The revised guidance also directs “all U.S. Attorneys to designate a point of contact to lead” religious liberty efforts.
Here is an excerpt from the press release announcing the changes:
In order to ensure compliance with the Attorney General’s memo, the USAM will be updated with language that directs relevant Department of Justice components to:
- Immediately inform the Office of the Associate Attorney General upon receiving service of a suit filed against the United States raising any significant question concerning religious liberty;
- Coordinate decisions about merits arguments and significant litigation strategy questions in religious liberty cases with the Office of the Associate Attorney General; and
- Obtain the approval of the Office of the Associate Attorney General with respect to any affirmative civil suit that impinges on rights under the Free Exercise Clause, Establishment Clause, or Religious Freedom Restoration Act.
As the BJC’s Holly Hollman suggested back in October, Sessions’ memo may create more problems than it solves:
In large part, the guidance restates much settled law, though with a decided tilt toward concerns of free exercise, giving short shrift to the government’s duty to avoid “no establishment” concerns. In a couple of areas, the guidance will exacerbate controversy. The guidance treats complicated legal issues, such as the definition of “substantial burden” on religious exercise and the interplay between religious autonomy and government funding, in an overly simplistic way.
The update, particularly the requirement that each office designate a religious liberty point of contact, would seem to raise the profile of religious liberty cases within the Civil Rights Division. Stay tuned.