Where feasible, litigating divisions and United States Attorneys’ Offices should rely on their designated religious liberty coordinators to facilitate the requirement that the Office of the Associate Attorney General be informed of religious liberty litigation in order to carry out its oversight responsibilities.

The notice, consultation, and approval activities described below should be carried out through the official assigned by the Office of the Associate Attorney General to coordinate religious liberty litigation handled by the Department.

1. A. Notice of Religious Liberty Claims Against the United States. Litigating divisions and United States Attorneys’ Offices must inform the Office of the Associate Attorney General immediately upon receiving service of a suit filed against the United States raising any significant question concerning religious liberty, including claims under the Free Exercise or Establishment Clauses of the First Amendment to the United States Constitution or under the Religious Freedom Restoration Act (RFRA).
2. B. Coordination of Litigation. Decisions about merits arguments and significant litigation strategy questions in the cases described in paragraph A must be coordinated with the Office of the Associate Attorney General.
3. C. Approval Requirement for Affirmative Civil Litigation that May Affect Religious Liberty Rights. The Associate Attorney General must approve any affirmative civil suit that impinges rights under the Free Exercise or Establishment Clauses or RFRA, whether brought by a litigating division or by a United States Attorney’s Office. Moreover, United States Attorneys’ Offices and litigating divisions must notify the Office of the Associate Attorney General if defendants raise religious liberty defenses or objections to affirmative suits.
4. D. Identification of Significant Religious Liberty Matters. The principles of religious liberty set forth in JM 1-15.300 should guide determinations of whether a question concerning religious liberty exists or a right under the Free Exercise or Establishment Clauses or RFRA may be affected.
5. E. Notification Requirement for Affirmative Litigation Under Federal Civil Rights Statutes Barring Religious Discrimination and Protecting Religious Liberty. The Department enforces a number of civil rights statutes barring religious discrimination and protecting religious freedom, including broader civil rights statutes that include religion among the protected classes, such as Titles II, III, IV, and VII of the Civil Rights Act of 1964, the Fair Housing Act, among others, as well as laws focused on protecting religious freedom, such as the Religious Land Use and Institutionalized Persons Act. These laws are enforced by the Civil Rights Division or by United States Attorneys’ Offices in coordination with the Civil Rights Division. When such civil rights suits involving religion are filed by the Department, the Civil Rights Division shall notify the official in the Office of the Associate Attorney General designated for coordinating religion-related matters.

[updated April 2018]