"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
—Amendment One, United States Constitution
Establishment of Religion
The Heritage Foundation
In recent years the U.S. Supreme Court’s rulings have placed the First Amendment’s Establishment and Free Exercise of Religion Clauses in tension, but it was not so for the Framers. None of the Framers believed that a public role for religion was an evil in itself.
Rather, many opposed an established church like the established Anglican Church in England because they believed that it was a threat to the free exercise of religion. Their primary goal was to protect free exercise.
That was the main thrust of James Madison’s famous Memorial and Remonstrance Against Religious Assessments (1785), in which he argued that the state of Virginia ought not to pay the salaries of the Anglican clergy because that practice was an impediment to a person’s free connection to whatever religion his conscience directed him.
Free Exercise of Religion
The Heritage Foundation
Establishing freedom of religion as both constitutional principle and social reality is among America’s greatest contributions to the world.
Nevertheless, the concept of free exercise of religion is not self-defining. The boundaries of free exercise, like those of other rights, must be delineated as against the claims of society and of other individuals.
The history of the Free Exercise of Religion Clause, in both its original understanding and modern interpretations, reveals two recurring impulses, one giving free exercise a broad, the other a narrow, scope.
Religious Freedom Restoration Act
In General.--Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) Exception.--Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
The Religious Freedom Reformation Act (RFRA), passed in 1993 by an overwhelming bipartisan majority in Congress and signed by President Clinton, enforces the First Amendment's protection of religious freedom from government interference.
The law provides for tests to determine whether or not to allow a government action that substantially burdens someone's religious freedom:
The government must have a compelling interest at stake.
Even with a compelling interest, the government must pursue the least restrictive way to accomplish its goal.
RFRA has played a key role in a number of religious freedom cases, including Burwell v. Hobby Lobby, in which the U.S. Supreme Court applied the law to protect a family business from being forced to participate in an Obamacare contraceptives mandate that violated their conscience rights.
What is RFRA? - Becket
5 facts about RFRA - Ethics and Religious Liberty Commission
How RFRA Fosters Peaceful Pluralism - Heritage Foundation
What is RFRA? - Home School Legal Defense Association
- How RFRA Benefits All - Christian Legal Society
- The Equality Act vs. RFRA - Breakpoint podcast
Conscience Laws in Healthcare
The Church Amendments
The conscience provisions contained in 42 U.S.C. § 300a-7 et seq. - PDF, collectively known as the “Church Amendments,” were enacted in the 1970s to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions. This provision also extends protections to personnel decisions and prohibits any entity that receives a grant, contract, loan, or loan guarantee under certain Department-implemented statutes from discriminating against any physician or other health care personnel in employment because the individual either performed, or refused to perform an abortion if doing so would be contrary to the individual’s religious beliefs or moral convictions.
Public Health Service Act § 245
Enacted in 1996, section 245, contained in 42 U.S.C. § 238n - PDF, prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity: 1) refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions; 2) refuses to make arrangements for such activities; or 3) attends (or attended) a post-graduate physician training program, or any other program of training in the health professions, that does not (or did not) perform induced abortions or require, provide, or refer for training in the performance of induced abortions, or make arrangements for the provision of such training.
The Weldon Amendment
The Weldon Amendment was originally passed as part of the HHS appropriation and has been readopted (or incorporated by reference) in each subsequent HHS appropriations act since 2005. It provides that “[n]one of the funds made available in this Act [making appropriations for the Departments of Labor, Health and Human Services, and Education] may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” It also defines “health care entity” to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.”
Law Resources from the U.S. Department of Health and Human Services Office of Civil Rights
The Affordable Care Act
The Affordable Care Act (Pub. L. No. 111-148 as amended by Pub. L. No. 111-152) includes new health care provider conscience protections within the health insurance Exchange program. Section 1303(b)(4) of the Act provides that “No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.” A recent Executive Order affirms that under the Affordable Care Act, longstanding federal health care provider conscience laws remain intact, and new protections prohibit discrimination against health care facilities and health care providers based on their unwillingness to provide, pay for, provide coverage of, or refer for abortions. Executive Order 13535, “Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act” (March 24, 2010).
Additionally, Section 1553 of the Affordable Care Act (42 USC § 18113) - PDF includes conscience protections regarding assisted suicide. “The Federal Government, and any State or local government or health care provider that receives Federal financial assistance under this Act (or under an amendment made by this Act) or any health plan created under this Act (or under an amendment made by this Act), may not subject an individual or institutional health care entity to discrimination on the basis that the entity does not provide any health care item or service furnished for the purpose of causing, or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing.”
Civil Rights Act - Title VII
(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
It shall be an unlawful employment practice for an employer -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;
Impact of Title VII
Among other applications, Title VII impacts the ability of religious organizations to retain their religious values in hiring practices.
The Act also has featured prominently in recent court cases over the definition of "sex discrimination."
A recent Supreme Court case, Harris v. EEOC, examines whether or not the Equal Employment Opportunity Commission may expand the biological understanding of "sex discrimination" to include gender identity and to penalize an employer on that basis.
The Hyde Amendment stipulates, "None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for any abortion."
About the Hyde Amendment
Congress has passed the Hyde Amendment on a bipartisan basis every year since 1976. The Hyde Amendment reflects a broad consensus of the American public who do not want tax dollars to be put toward abortion.
Because the Hyde Amendment is considered by Congress annually, this topic is covered in depth under the Legislation tab.
Enforcing the Law:
HHS Conscience and
Religious Freedom Division
In January 2018, the U.S. Department of Health and Human Services (HHS) announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights.
How to File a Conscience Complaint
Have you experienced discrimination over conscience or religious freedom issues? As a result of conscience or religious faith issues, you might have been:
Pressured to participate in a conscientiously objectionable action or referral
Denied admission to an educational or training program
Penalized, pressured or subjected to any other form of discrimination based on your conscience and religious convictions
Filing a complaint is simple and straightforward: You simply relate your story of what happened—who, what, when, where. You can file a complaint with the U.S. Department of Health and Human Services (HHS) Office for Civil Rights online or via mail, fax or email. Even if your story occurred decades ago, you can still report it, since investigating conscience discrimination cases is not legally constrained by a lapse of time.
Note: Before you file with HHS, consider seeking legal help (see below).
Get Legal Help
Freedom2Care works with a number of legal firms that specialize in cases of freedom of faith, conscience and speech. These firms typically provide services to clients free of charge.