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16 Nw. J. L. & Soc. Pol'y 1 (2020-2021)

handle is hein.journals/nwjlsopo16 and id is 1 raw text is: Copyright 2020 by Robin Knauer Maril Volume 16 (Fall 2020) Northwestern Journal of Law and Social Policy The Religious Freedom Restoration Act, Trinity Lutheran, and Trumpism: Codifying Fiction with Administrative Gaslighting Robin Knauer Marill INTRODUCTION For over a century, courts have weighed state actions that balance the restraints of the Establishment Clause with the obligations of the Free Exercise Clause of the First Amendment of the U.S. Constitution. The Establishment Clause prohibits the making of a law respecting the establishment of any religion, while the Free Exercise Clause provides that Congress shall make no law . .. prohibiting the free exercise of religion.2 The space between these two strongholds of our democracy has been described by the United States Supreme Court as the play within the joints.3 As the Supreme Court explained in Locke v. Davey,4 there are state actions that are permitted by the Establishment Clause, but not required by the Free Exercise Clause.5 A number of recent high profile cases before the Court have sought to further define the contours of this space, and determine the limitations of the Religious Freedom Restoration Act (RFRA). These cases, however, have provided little clarity for the government with respect to its implementation of federal policies and programs.6 Despite the absence of clear guidance from the Court, the Trump administration has consistently pointed to Trinity Lutheran Church of Columbia, Inc. v. Comer and Burwell v. Hobby Lobby Stores, Inc. as mandates to protect and enable religious-based discrimination by federal grantees and contractors delivering federal services.7 In doing so, 1 Visiting Assistant Professor, Willamette University College of Law. I would like to thank Sherwet Witherington for her thoughtful edits and contributions. 2 U.S. CONST. amend I. 3 Walz v. Tax Comm'n of New York, 397 U.S. 664, 669 (1970). 4 540 U.S. 712 (2004). 5 Id. at 719. 6 See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012). 7 See, e.g., Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption, 84 Fed. Reg. 41,677 (proposed on Aug. 15, 2019) (to be codified at 41 C.F.R. pt. 60) (adopting a regulation designed to strip workers of basic protections and empowering businesses and organizations receiving taxpayer dollars to discriminate against their employees with few safeguards from abuse); Health and Human Services Grants Regulation, 84 Fed. Reg. 63,831 (proposed on Nov. 19, 2019) (to be codified at 45 C.F.R. pt. 75) (proposing revisions to the federal Uniform Administrative Requirements for grant programs that strip explicit nondiscrimination provisions from the existing text); Equal Participation of Faith-Based Organizations in the Department of Labor's Programs and Activities: Implementation of Executive Order 13831, 85 Fed. Reg. 2,937 (proposed Jan. 17, 2020) (to be codified at 29 C.F.R. pt. 2) (allowing providers operating a voucher program to require a beneficiary to engage in religious activities); Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. 27,846 (proposed

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