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Politics | The Justice Department backs more religious liberty cases than previous administrations
by Harvest Prude
Posted 3/28/19, 06:43 pm

WASHINGTON—Under President Donald Trump, the Department of Justice has supported more religious liberty cases than it did during the first two years of either the Obama or Bush administrations.

Since Trump took office, the Justice Department has filed 12 friend-of-the-court, or amicus, briefs, according to an analysis by NBC News and Columbia Journalism Investigations. The department under President George W. Bush filed only two amicus briefs in religious liberty cases in the same amount of time, while the Obama administration filed eight. Over eight years, the Justice Department under President Barack Obama filed 23 amicus briefs on religious liberty issues, and the Bush administration filed 34. NBC did not examine whether litigation of religious liberty cases has increased overall, looking only at the number of cases in which the Justice Department has taken a side.

The Trump administration has made a vocal commitment to religious liberty. In May 2017, the president signed an executive order promising to “vigorously enforce robust protections for religious freedom.”

When asked about the administration’s policies on religious liberty, a spokeswoman for the Justice Department referred me to several cases the agency has litigated and to speeches by former Attorney General Jeff Sessions. In October 2017, Sessions published 20 principles on how the executive branch should handle religious liberty cases, including guidance such as, “The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.” Sessions also required each U.S. attorney’s office to designate a contact for religious liberty issues and updated the Justice Department’s attorney manual to include a section on religious liberty.

“Religious Americans are no longer an afterthought,” Sessions said at a religious liberty summit in July 2018. “And this Department of Justice is going to court across America to defend the rights of people of faith.”

And so far there’s no indication that current Attorney General William Barr plans to deviate from the department’s religious liberty policies.

Colorado baker Jack Phillips can attest to the Justice Department’s committment to religious liberty cases. The department filed a brief in his support of his case after the Colorado Civil Rights Commission accused him of discrimination for not baking a wedding cake for a same-sex couple. Phillips ultimately won Masterpiece Cakeshop v. Colorado Civil Rights Commission at the U.S. Supreme Court in a narrow ruling that found the commission held an unfair bias against his religious beliefs.

Jeremy Dys, deputy general counsel with First Liberty, told me that having the Justice Department support his organization’s case defending a 100-year-old World War I memorial shaped like a cross in Bladensburg, Md., has been critical. The Supreme Court heard oral arguments earlier this month in The American Legion v. American Humanist Association, which could determine the future of public monuments with religious symbols throughout the country.

In a study published in the Harvard Civil Rights–Civil Liberties Law Review, Victor Zapana, a federal appellate clerk, noted amicus briefs filed by the Justice Department are “among the most powerful—and least examined—tools in civil rights litigation.” Because they embody the formal position of the federal government, they can serve as a game changer for litigants, Zapana wrote.

Eric Rassbach, an attorney with the religious liberty law firm Becket, told me the Justice Department’s advocacy can make a state or local government think twice about pursuing discriminatory policies such as zoning laws that block houses of worship. “When the [department] expresses interest in a case like that, a local municipality might decide, this isn’t worth the fight—that’s an important role the government can play,” he said.

The Trump administration has defended religious liberty not just for Christians, but also for a variety of other faiths. It filed two briefs on behalf of Muslim groups who were being prevented from building mosques. The Justice Department also backed Jews, Hindus, Roman Catholics, and evangelical Christians who ran into similar problems trying to build or convert buildings into houses of worship. And it sided with a group of Christian crisis pregnancy centers in California who objected to state regulations requiring them to promote abortion services. The Supreme Court ruled 5-4 in the group’s favor.

Rassbach said Americans should take seriously how their government treats all religions, including those different from their own. He called a government’s attitude toward religious minority groups the canary in the coal mine for freedoms like speech, conscience, and worship in a country. He pointed to the United Kingdom placing tight restrictions on Orthodox Jews attempting to run Jewish schools and Russian officials jailing Jehovah’s Witnesses for their beliefs.

“I think Americans should look at Europe as an example to avoid,” Rassbach said. “And I think the lack of religious liberty in Europe leads directly to deep societal tensions that result in violence ultimately.”

Associated Press/Photo by Jose Luis Magana Associated Press/Photo by Jose Luis Magana Vice President Mike Pence speaks before the American Israel Public Affairs Committee Monday in Washington, D.C.

Angst at AIPAC

Vice President Mike Pence called out Democrats for failing to do enough to confront anti-Semitism in their party’s ranks as he addressed the American Israel Public Affairs Committee (AIPAC) in Washington, D.C., this week.

“It’s astonishing to think that the party of Harry Truman, which did so much to help create the state of Israel, has been co-opted by people who promote rank, anti-Semitic rhetoric and work to undermine the broad American consensus of support for Israel,” he said, pointing to a recent controversy over remarks by U.S. Rep. Ilhan Omar, D-Minn. Omar’s suggestion that pro-Israel political groups push “allegiance to a foreign country” sparked debate within Democratic ranks that led to a resolution broadly condemning hate, including anti-Semitism.

Pence also noted the absence of Democratic presidential hopefuls at the AIPAC event after the progressive group MoveOn called on candidates to boycott the event. The group took credit for the candidates’ absence, but several of them met with AIPAC representatives, and others claimed their lack of attendance did not reflect their views on Israel, according to The Washington Post.

Top Democratic lawmakers, including House Speaker Nancy Pelosi of California, House Majority Leader Steny Hoyer of Maryland, and Senate Minority Leader Chuck Schumer of New York, voiced their support for Israel at the event.

Hoyer’s remarks took aim at Omar. He declared himself proud to be accused of “dual loyalty” to the United States and Israel. He also noted that the freshman class of Democrats included 63 lawmakers, not just the few who have drawn the most attention.

“Support for Israel must never be a partisan issue or perceived to be a partisan issue,” he said. “Because it isn’t.” —Anne K. Walters

Associated Press/Photo by Paul Sancya Associated Press/Photo by Paul Sancya A Trump campaign rally in Grand Rapids, Mich., on Election Day 2016

2020 forecast

President Donald Trump’s reelection chances surged after the news about special counsel Robert Mueller’s report came out last weekend, according to PredictIt, a futures market for political outcomes.

Quartz also reported that “yes” bets on Trump’s reelection doubled on Sunday after Attorney General William Barr informed Congress that Mueller did not find any evidence that the president or members of his campaign colluded with Russia to influence the 2016 U.S. presidential election. As of Thursday, Trump led the field of potential 2020 presidential candidates, followed by former Vice President Joe Biden, who has not announced his candidacy, and Sens. Bernie Sanders, I-Vt., and Kamala Harris, D-Calif., who have tossed their hats into the ring.

Wayne Messam, the little-known mayor of Miramar, Fla., announced Thursday a long-shot bid for the 2020 Democratic presidential nomination. In his video announcement, Messam, whose parents immigrated to the United States from Jamaica, highlighted his family’s story, from his father working as a sugar cane cutter to his election as mayor of a town of 140,000 people, as an example of of the American dream.

Meanwhile, other candidates in the crowded Democratic field are doing their best to distinguish themselves. Sen. Kirsten Gillibrand, D-N.Y. became the first candidate to release tax returns Wednesday and challenged her rivals to do the same.

On Tuesday, Biden—in an apparent attempt to get what could become a controversial issue behind him before he commits to running—expressed regret for how the Senate Judiciary Committee under his chairmanship treated Anita Hill when she accused current Supreme Court Justice Clarence Thomas of sexual harassment during Thomas’ confirmation hearing in 1991. Biden said the committee was abusive and disrespectful to Hill. —H.P.

Associated Press/Photo by J. Scott Applewhite Associated Press/Photo by J. Scott Applewhite

This week in Congress

In the House of Representatives:

  • On Tuesday, the House failed to pass a motion that would overturn President Donald Trump’s first veto, leaving his declaration of a national emergency on the U.S.-Mexico border intact. The vote of 248-181 fell short of the needed two-thirds majority, though 14 Republicans voted with their Democratic colleagues.
  • Democrats unveiled a new healthcare bill on Tuesday to protect some provisions of the Affordable Care Act.
  • The House Oversight and Reform Committee is seeking 10 years of President Donald Trump’s tax returns, according to a letter obtained by Politico. The committee gave a tax and accounting firm until Wednesday to comply with the request.
  • On Wednesday, the House voted 242-187 on the Paycheck Fairness Act to promote paycheck equality between men and women. House Republicans who voted against the bill plan to introduce a rival proposal, Politico reported.
  • On Thursday, the House voted 238-185 for a resolution to condemn the Trump administration’s new limits on transgender individuals in the military.

In the Senate:

  • On Tuesday, senators confirmed Judge Bridget Bade of Arizona to the 9th U.S. Circuit Court of Appeals with a vote of 78-21.
  • The Green New Deal, liberal Democrats’ proposal to deal with climate change, unanimously failed on the Senate floor Tuesday as Democrats dodged taking a position and instead voted “present.”
  • On Wednesday, senators heard from the Federal Aviation Administration on what the agency could have done to prevent recent Boeing 737 Max crashes in Indonesia and Ethiopia and what changes it will make as a result. —H.P.
Associated Press/Photos by Andrew Harnik (file) Associated Press/Photos by Andrew Harnik (file) Former EPA Administrator Scott Pruitt

Unanswered questions

A U.S. government ethics watchdog agency declined to certify the final financial disclosure of former Environmental Protection Agency Administrator Scott Pruitt because of questions about his use of a Washington, D.C., condominium owned by an energy lobbyist’s wife.

The Office of Government Ethics said in a filing released Tuesday that it “was unable to determine whether or not Mr. Pruitt received a reportable gift related to his rental of a Capitol Hill apartment.” Internal EPA investigators ended an investigation of the matter without reaching a conclusion. Pruitt, who resigned last year amid ethics concerns about his spending, reportedly paid just $50 per night whenever he used the condo. Democrats on the Senate Environment and Public Works Committee criticized EPA oversight of the former administrator.

“The Office of Government Ethics decision is appropriate and important, but it only underscores why the EPA Office of Inspector General needs to take ethics issues more seriously,” Sens. Tom Carper of Delaware and Sheldon Whitehouse of Rhode Island said in a joint statement. “When the EPA … fails to fully investigate ethical violations brought to its attention, it signals there are no consequences for unethical behavior by EPA officials.” —A.K.W.

Budget changes

President Donald Trump, after several days of criticism, said Thursday he was backing off a budget request to cut funding for the Special Olympics. Education Secretary Betsy DeVos fielded questions this week about the proposal to eliminate $17.6 million in funding for the group, about 10 percent its overall revenue. At a Senate budget hearing Thursday, DeVos said she “wasn’t personally involved” in the decision to eliminate the funding for the sports organization for people with intellectual and physical disabilities, but she defended it as her agency seeks to cut $7 billion from the 2020 budget. Trump told reporters Thursday, however, “I've overridden my people for funding the Special Olympics.” —Lynde Langdon

Harvest Prude

Harvest is a reporter for WORLD based in Washington, D.C.

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