DOJ's New Guidance on Religious Liberty

The Department of Justice’s newly issued guidance on religious liberty, and the legal basis for it, deserves our attention. Although it lacks the drama of a Supreme Court opinion, its practical effect may prove equally significant. The Guidance directs every federal agency to interpret and administer federal law in light of nearly a decade of Supreme Court decisions reaffirming America’s first freedom.

That development reflects an abiding constitutional truth. Religious liberty is not a privilege bestowed upon us by a benevolent government. It is a pre-political right grounded in the dignity of every human being, created in the image of God. Our rights do not originate with government because government did not create us. As the Declaration of Independence proclaims, we “are endowed by [our] Creator with certain unalienable Rights.” The Constitution therefore does not create religious liberty; it recognizes a freedom that precedes the state and places it beyond the ordinary reach of civil authority.

The Justice Department’s updated guidance builds upon its important 2017 memorandum, which emphasized the Religious Freedom Restoration Act, the Free Exercise Clause, and long-standing protections for conscience. That earlier guidance provided a valuable constitutional foundation. But much happened at the Supreme Court since 2017.

Since 2017, the Supreme Court steadily restored the constitutional order, including in the First Amendment. In Fulton v. City of Philadelphia, Carson v. Makin, Kennedy v. Bremerton School District, Groff v. DeJoy, Our Lady of Guadalupe School v. Morrissey-Berru, and most recently Mahmoud v. Taylor, the Court rejected an increasingly common assumption that religious believers surrender constitutional protection whenever they enter the public square. Instead, the Court repeatedly reaffirmed that government must treat religious exercise with neutrality rather than suspicion.

Equally important, the Court’s decision in Kennedy formally abandoned the long-discredited Lemon test, replacing it with an approach rooted in our Nation’s history and tradition. That shift restores an understanding that the the Court must interpret the Religion Clauses according to their original public meaning, and the historical practices informing their adoption (rather than through an abstract theory of governmental hostility toward religion).

The Department’s new guidance faithfully incorporates these constitutional developments.

Perhaps its most significant improvement is its explicit recognition of parental rights. For the first time, federal guidance expressly acknowledges that parents possess a constitutionally protected right to direct the religious upbringing of their children. That recognition reflects not only Mahmoud but also a constitutional tradition extending from Meyer, Pierce, and Yoder. Government may not force parents to choose between participation in public institutions and fidelity to their religious convictions. The family remains the first and most fundamental institution of civil society, and parents, not the state, bear responsibility for raising their children.

The memorandum also strengthens protections for religious organizations. It affirms the constitutional principle of church autonomy, recognizing that religious ministries possess authority to govern their own internal affairs free from governmental interference. Likewise, it confirms that religious organizations may compete equally for federal grants and contracts without abandoning their religious identity or mission. Equal treatment means exactly that: government may neither establish religion nor discriminate against those who faithfully practice it.

The guidance also changes how the federal government should function. Rather than waiting until litigation exposes constitutional violations, agencies are directed to evaluate religious liberty concerns during rulemaking, regulatory review, employment decisions, enforcement actions, grants, and contracting. Religious liberty thus becomes a constitutional consideration at the beginning of governmental decision-making rather than a defense asserted after government has overreached. This approach closely reflects the constitutional philosophy James Madison articulated in his Memorial and Remonstrance Against Religious Assessments. Madison explained that the duty every person owes to the Creator is both precedent to and superior to the claims of civil society. Because religious obligation arises before civil government exists, government possesses only limited authority over matters of conscience. The new guidance embraces that foundational principle by recognizing that religious liberty deserves careful protection throughout the work of the federal government.

From a biblical perspective, this understanding reflects the proper relationship between civil government and the human person. Scripture teaches that civil rulers possess genuine but limited authority. Government is ordained by God to administer justice, preserve order, and punish wrongdoing, not to command the conscience. When government protects the freedom to worship, teach, speak, educate one’s children, and live consistently with one’s faith, it fulfills rather than exceeds its constitutional responsibility.

Nothing in the Department’s guidance establishes a religious government or diminishes the constitutional rights of those who hold different beliefs. Rather, it recognizes that a government committed to constitutional liberty must protect the free exercise of religion with the same seriousness that it protects every other unalienable fundamental constitutional freedom. In doing so, the Justice Department takes an important step toward restoring the original promise of the First Amendment.

By incorporating the Supreme Court’s recent jurisprudence into the everyday work of the Executive Branch, the Department of Justice reaffirms a principle that reaches back to the Founding itself. Government does not gift us the privilige of religious liberty; It is a God-given right that constitutional government exists to secure.