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This Week in Washington, December 15, 2020

This week:

Government Officials Can Be Personally Liable Under Religious Freedom Restoration Act, Supreme Court Rules

The much-maligned Religious Freedom Restoration Act (RFRA)—which some critics say is a “license to discriminate” for conservative Christians—has been successfully invoked, instead, by three Muslim men seeking redress for alleged mistreatment by FBI agents. The Supreme Court ruled this week 8-0 (with newest justice, Amy Coney Barrett, not taking part) that government officials may potentially be sued for money damages if they interfere unduly with exercise of religious rights as prohibited by RFRA.

In Tanzin v Tanvir, three Muslim men refused an FBI request to become informants within their Muslim community. They claim that, in retaliation for their refusal, the FBI agents placed the men on a “no-fly list”—a move that resulted in significant economic loss. The men then sued the agents under RFRA.

RFRA, passed in 1993, states that if the government unlawfully burdens religious exercise, plaintiffs may “obtain appropriate relief.” In interpreting this, the Supreme Court disagreed with lower court rulings, holding that under RFRA the men could sue individual government officials and that monetary damages were appropriate relief.

The ruling has generated a range of responses. It has been hailed by conservatives as an affirmation of RFRA as a means to hold government officials accountable for the impermissible burdening of religious liberty. Some liberals, however, have expressed fear that the ruling is “likely to empower religious conservatives who seek exemptions from anti-discrimination laws and other policies favored by liberals” such as antidiscrimination laws protecting the LGBTQ community.

Nine Federal Agencies Finalize Rule Supporting Participation of Faith-based Social Service Providers in Federal Grants

Nine federal agencies have announced the finalization of a new rule they say will ensure that faith-based social service providers can participate in the federal grant process while staying true to their religious beliefs and identity.

The joint announcement came from the U.S. Department of Labor; the Department of Justice; the Department of Homeland Security; the Department of Education; the Department of Health and Human Services; the Department of Housing and Urban Development; the Department of Agriculture; the Agency for International Development; and, the Department of Veterans Affairs.

In essence, the new rule means that faith-based social service providers that take part in federal grant programs administered by the nine federal agencies will no longer have to provide referrals to secular organizations upon request. Nor will they be required to notify clients that they have a right to refuse to take part in religious activities led by the group. The rule clarifies that faith-based entities can maintain their own distinctive religious identity and not lose legal protections simply because they participate in a federal program administered by these agencies.

The origins of this new rule stem from an Executive Order issued in May 2018. Since then, the nine agencies have been working together throughout the rulemaking process, which included soliciting public comments. More than 95,000 interested individuals, entities and organizations weighed in on the proposed regulations.

Supporters of the new rule say that it merely provides clarity about the rights and obligations of faith-based organizations participating in federal financial assistance programs and does so in a way that’s consistent with Constitutional requirements regarding religious freedom.

On the other hand, critics claim the rule increases the likelihood that people in need of help will face religious discrimination.

All agree, however, that it’s likely the incoming Biden administration will immediately begin efforts to amend the rule—although this is a lengthy process.

This is the second recent regulatory move by the departing Trump administration impacting religious freedom. Last week, the Department of Labor announced finalization of regulations that mean religious organizations participating as federal contractors can use religious preferences in their hiring practices.

News and Resources in Brief

New Highpoint Reached in Government-led Repression of Religion Worldwide, According to Study

The U.S.-based Pew Research Center, which has tracked levels of religious oppression worldwide since 2007, has released its most recent data (from 2018) on government restrictions on religion though laws, policies, and actions by officials impinging on the practice of religious beliefs. The result? In 2018, the global median level of government restrictions on religion reached its highest level since tracking began. According to the report, which studied five world regions, “the Middle East and North Africa continued to have the highest median level of government restrictions in 2018 (6.2 out of 10). However, Asia and the Pacific had the largest increase in its median government restrictions score, rising from 3.8 in 2017 to 4.4 in 2018, partly because a greater number of governments in the region used force against religious groups, including property damage, detention, displacement, abuse and killings.

Brunei's New Penal Code Raises Concerns

The U.S. Commission on International Religious Freedom (USCIRF) has released a helpful religious freedom factsheeton recent developments in the small southeast Asian country of Brunei highlighting the implementation last year of the troubling “Syariah Penal Code Order 2013.” This new penal code blurs the lines between the secular and religious legal systems in Brunei and makes attendance at Friday prayers mandatory for all Muslims. Criminal punishments for blasphemy have also been increased.

In-depth Study on Blasphemy and Apostasy Laws Worldwide Offers Sobering Analysis

A new report entitled Violating Rights: Enforcing the World’s Blasphemy Laws shows that 84 countries around the globe maintain laws that criminalize expression which insults or offends religious doctrines. The report compares the implementation of blasphemy laws between 2014 and 2018 and identifies 732 total cases in 41 countries. The data highlights how the presence of anti-blasphemy and apostasy laws within a country increases the likelihood of social violence against those who are perceived to be out of step with the religious majority. The release of this study, undertaken by the U.S. Commission on International Religious Freedom, follows in the wake of last week’s passage in the House of Representatives of a resolution condemning blasphemy and apostasy laws worldwide.

Nigeria’s Handling of Religious Violence in the Spotlight as 330 Schoolboys Abducted by Boko Haram

The Islamic extremist group Boko Haram has kidnapped some 330 boys from a school in Nigeria’s Katsina State. For more than 10 years, Boko Haram has waged a violent campaign to introduce strict Islamic rule in northeast Nigeria. Many thousands of people have been killed in attacks, and more than a million have been displaced. The latest attack shows that Boko Haram’s reach is expanding into the northwest of the country.

The abduction of the schoolboys comes just a week after the U.S. Department of State added Nigeria—for the very first time—to its list of “countries of particular concern” with regard to religious freedom.

For more information on religious freedom conditions in Nigeria, see the report released this week by the U.S. Commission on International Religious Freedom.

For more information about any of these stories or resources, please contact Bettina Krause, associate director for Public Affairs and Religious Liberty department at the Seventh-day Adventist Church world headquarters. Krauseb (at) gc.adventist.org