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

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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