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Fact check: Did the Supreme Court reprimand Biden for standing against religious freedom?
Pompeo article claims Trump administration outshone current president in its approach to religious liberty
Has the Supreme Court reprimanded the Biden administration for its approach to religious liberty? You’d certainly think so if all you knew came from reading the headline on an article former U.S. Secretary of State Mike Pompeo wrote for a conservative legal advocacy group.
The blatant mischaracterization of the court’s recent decision in a case involving a postal worker who quit his job rather than work on Sundays is only one problem with the article Even in the Face of the Supreme Court’s Rebuke, the Biden Administration Continues Its Assault on Faith that appeared recently on the website of the American Center for Law and Justice.
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While attempting to leave aside the use of political hyperbole, let’s briefly review the veracity of the “facts” that Pompeo used to support his argument that the Biden administration should be held accountable for its failures to protect religious freedom. Although the article has not been widely distributed outside the ACLJ, we are analyzing it here because of the likelihood that its arguments will be used in the upcoming presidential campaign.
Sunday labor dispute
In the only case this session that focused directly on religious rights, the Supreme Court unanimously agreed with the legal position of postal worker wanting an exemption from Sunday work. An off-handed comment in a 1977 Supreme Court ruling had indicated that an employer needed to provide only a de minimis (or trivial) effort to accommodate employees’ religious practices or belief under federal civil rights law, and the employee sought a ruling that the employer need to make significant effort.
Pompeo’s claim: The Postal Service argued “that even the slightest hardship to their business practices negated his [Goff’s] religious freedom.”
Truth verdict: ❌ False. In fact, the U.S. government, arguing on behalf of the Postal Service, agreed that an employer needs to face more than the slightest hardship to turn down a request for religious accommodations.
Interestingly, the government’s position was very close to the position argued by the ex-postal worker’s lawyers. His lawyers favored language that would require employees to face “significant difficulty or expense” to reject a proposed accommodation, while the government referred to the necessity of “substantial expenditures” or “substantial additional costs.” The high court’s ruling, which Pompeo praised, ended up with a standard that included “substantial in the context of an employer’s business,” not much different than the wording favored by the administration.
Rights of conscience for medical professionals
In his first in a list of ways the Biden administration is “taking steps to roll back protections for religious freedom,” Pompeo referred to a proposal to modify the rules used to enforce a federal law protecting the rights of conscience for medical workers.
Pompeo’s claim: The administration “recently signaled its intention to rescind a Trump-era regulation protecting the rights of conscience for medical professionals — meaning nurses and doctors will no longer have protections if they decline to carry out procedures that violate their beliefs, such as abortions or end-of-life decisions.”
Truth verdict: ✅❌ Partially true but overstated. It is true that the Biden administration has sought formal comment on changing the rules, but any changes would not invalidate the requirement imposed by statute that freedom of conscience must be protected. The legal question is not whether rights of conscience should be protected, but how.
The Department of Health and Human Services in January proposed a rule change to partly rescind the rule adopted in 2019 that is known as the “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority” rule. HHS said that parts of the 2019 rule were “redundant or confusing, because they undermine the balance Congress struck between safeguarding conscience rights and protecting access to health care access, or because significant questions have been raised as to their legal authorization.”
However, the HHS has not formally approved the changes, and the Trump-era rule remains in effect more than two years into the Biden administration.
The proposed change would not overrule the law passed by Congress that provides for the conscience protections. Whether the proposed change would implement sufficient protections is a political question; the changes have been opposed by anti-abortion groups.
Religious adoption agencies
Pompeo’s claim: The Biden administration has threatened to cut off federal funding for religious adoption agencies that “refuse to place children in homes that are in violation of their core beliefs.”
Truth verdict: ✅ True, if those core beliefs require certain types of discrimination.
The Department of Health and Human Services under the Trump administration granted broad waivers that allowed adoption agencies receiving federal funds to use placement criteria that could allow denials to same-sex couples and parents with certain religious beliefs. Under current HHS policy, waivers can be granted only on a case-by-case basis.
The HHS said that the Trump administration’s waivers were “inconsistent with the Department’s critical goal of combating discrimination based on religion, sexual orientation, and gender identity.”
The HHS rules do not affect adoption agencies that are totally privately funded. In general, adoption agencies fall under state, not federal, jurisdiction.
Pompeo’s claim: “And we all remember how the Obama Administration weaponized the IRS to attack churches and religious institutions and organizations.”
Truth verdict: ❓ It is unclear what alleged weaponization Pompeo was referring to.
It is possible that Pompeo was referring to the many calls by Democrats during Barack Obama’s presidency for the Internal Revenue Service to invalidate the tax-exempt status for politically conservative churches that engaged in activities such as distributing voter-information booklets and allowing candidates to give guest sermons. However, the IRS never did overturn the tax status of any church for such political activities.
Pompeo’s claim: The Trump administration “made religious freedom a core issue of our foreign policy” while “this commitment to advancing religious freedom abroad has disappeared under the Biden Administration.”
Truth verdict: ❌✅ Ultimately, the matter of which administration did or is doing more to advance religious freedom abroad is a political question. But to say that Biden administration has eliminated its public commitment in that area is demonstrably not true.
One detail that Pompeo used to buttress his claims about the Trump administration is pointing to its declaration that China was engaging in genocide with its treatment of Uyghur Muslims. What he does not mention is that the declaration came on the last full day of the Trump administration, leaving no time for Trump to take action as a result.
Pompeo claims that the Biden administration “has prioritized climate change negotiations with China over all else, including protecting minority religious sects in their country.” There may be truth to this — but it doesn’t sound that much different than the explanation Trump gave for declining to enact sanctions against China for its treatment of the Uyghurs because “well, we were in the middle of a major trade deal.”
Biden did sign bipartisan legislation, passed with a near-unanimous vote, in December 2021 to ban imports from the Xinjiang region of China because of the genocide. This March, the administration imposed trade restrictions on five Chinese companies believed to be involved in the genocide.
Pompeo also alleged that the Biden administration has backtracked on efforts to hold Nigeria accountable for religious persecution. He presumably is referring to the removal of Nigeria from the list of Countries of Particular Concern for religious-freedom violations. That decision continues to be criticized by some members of Congress and various human rights organizations.
303 Creative v. Elenis, a better-known case involving a website designer who didn’t want to make websites for sex-sex weddings, was argued and decided on free-speech grounds rather than religious rights.
Axios, Exclusive: Trump held off on Xinjiang sanctions for China trade deal, June 21, 2020.