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.”