Sessions Reaffirms DOJ Commitment to Ensuring Religious Freedom in U.S.

October 29, 2018

Attorney General Jeff Sessions spoke Monday in the wake of a deadly shooting at a synagogue in Pittsburgh about the Department of Justice's plans to identify and end religious discrimination by the United States government.

In remarks to the Boston Lawyers Chapter of the Federalist Society on Monday, which began with interruptions from protesters, Sessions said the Religious Liberty Task Force will lead the effort to prevent the government from practicing religious discrimination. The Task Force will determine "whether there are other instances in which this kind of discrimination is occurring at the federal level," Sessions said. "If so, it must, and will, stop."

In June, Sessions announced the Place to Worship Initiative, through which the department would "[improve] training for federal prosecutors about legal protections for houses of worship." In July, Sessions established the Religious Liberty Task Force to ensure executive agencies' compliance with DOJ policy and federal law. During the department's Religious Liberty Summit, Sessions explained the function of the task force.

The task force will help the department fully implement our religious liberty guidance by ensuring that all Justice Department components are upholding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt and how we conduct our operations. That includes making sure that our employees know their duties to accommodate people of faith.

On Monday, he explained the task force would now evaluate federal compliance in light of the Supreme Court’s Trinity Lutheran ruling.

Trinity Lutheran Church of Columbia, Inc. v. Comer is a 2017 Supreme Court case in which the Missouri state government defended a decision to exclude a church-funded school from an otherwise neutral and secular aid program. The church-operated school, The Learning Center, has an open admissions policy, and wanted the funds to resurface its playground with rubber turf. The state argued Missouri’s constitution prohibited the disbursement of government funds to a religious organization. The church argued the decision violated both the First and 14th Amendments.

The Supreme Court sided with the church in a 7-2 decision. The majority decision, penned by Chief Justice John Roberts, argued the state’s position against the church was "odious to our Constitution" and "cannot stand."

Sessions explained that since the ruling prevented government from discriminating against religious institutions "solely because of their religious character," the task force would reexamine federal policies and ensure universal compliance.

Federal and state governments have a checkered history of religious tolerance. Sessions pointed to recent instances of discrimination in Colorado and Missouri, against nuns and clergy housing, from state officials and the United States Senate.

The attorney general also pointed to Sen. Dianne Feinstein's (D., Calif.) treatment of Judge Amy Barrett during a confirmation hearing, though he did not name the senator. "We’ve seen a United States senator interrogate a judicial nominee about her religious ‘dogma,’" Sessions said, even though "the Constitution explicitly forbids a religious test for public office."

During her hearing as a nominee to the United States Court of Appeals for the Seventh Circuit, Barrett, a Catholic, fielded questions critical of her ability to manage her fidelity to the law in light of her faith. Feinstein expressed concern about Barrett's ability to rule impartially because of her faith, remarking that "the dogma lives loudly within you."

Sessions described these "deeply troubling incidents" as cause for concern for "anyone—religious or otherwise—who cares about our Constitution."

In his Monday remarks, Sessions also took the time to praise the work of the Federalist Society for returning constitutional interpretation to its roots in the text itself. "I cannot name any other group over the last 35 years that has come close to the policy achievements of the Federalist Society in their area of emphasis," he said.

He praised the organization's support for its jurisprudence of a "neutral umpire," in which judges call balls and strikes rather than interpret the texts as they wish. Support for that view marks a "stunning reversal" from the last century of positivist and "living constitution" orthodoxy, according to Sessions. Thanks to President Donald Trump, he said, "there are two more Federalist Society members sitting on the Supreme Court." Trump has appointed Justices Brett Kavanaugh and Neil Gorsuch to the Court.

Sessions noted that colonial America was the product of those "fleeing religious persecution." Its "theological traditions" undergird American conceptions of law and liberty. Public virtue and the ability to practice one’s faith were central to the Founders’ conception of American life.

Sessions paid tribute to the Jews murdered Saturday in Pittsburgh’s Tree of Life Synagogue. "It is fitting that we gather here today to talk about religious freedom in this country," Sessions said, noting "it could not come at a more important time." He condemned the attack.

"We are all still reeling from the murderous rampage in Pittsburgh that took the life of 11 congregants targeted because of their faith—worshiping faithfully in their own synagogue," Sessions said. "This was not just an attack on the Jewish faith. It was attack on all people of faith. And it was an attack on America’s values of protecting those of faith. It cannot—it will not—be tolerated.

Sessions said the Justice Department, at Trump’s urging, would fully prosecute the perpetrators of that attack and of others against people of faith. "Under President Donald Trump, the Department of Justice is going to courts across America to defend the rights of people of faith," he said. Since last year, the department has prosecuted cases of arson or threats against religious institutions, resulting in 14 indictments and 10 convictions.

He added that the department has recently "obtained 30 hate crime convictions, and since January 2017, has indicted 50 more such defendants," including the alleged Pittsburgh attacker.

Sessions promised his department would prosecute serious wrongdoing. "We are going to keep going to court. We are going to keep winning," he said.

But, in light of a rise in hate-based attacks in America, Sessions urged for civil society to come together and heal without government involvement. "Maybe what we need is not more litigation but more tolerance, or simple patience, for others," he said. "We also need a recovery of respect for one another."