The Religious Freedom Restoration Act, Trinity Lutheran, and Trumpism: Codifying Fiction with Administrative Gaslighting

Maril, Robin S. | December 1, 2020

This article addresses the Trump administration’s consistent misinterpretation and misapplication of legal precedent to support unnecessary religious exemptions that exceed Constitutional mandates and impair the rights of third parties to access federal services and programs. Proponents of this routinized repeal of civil rights protections argue that the Trump administration is merely restoring the correct balance of religious liberties in the federal government. However, the regulations and policies included in this campaign unconstitutionally broaden the already robust religious protections provided by statutes and court decisions and have the effect of dismantling the civil rights infrastructure of the past 50 years. Despite the absence of clear guidance from the Court, the Trump administration has consistently pointed to Trinity Lutheran 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. In doing so, the administration has dismissed the consensus of legal scholars and commentators regarding the limitations of these opinions. This article concludes that, given the faulty legal support of these cases, all regulations implemented under them are legally specious and should be vacated by courts when challenged. The federal register is no place for “alternative facts.”