According to senators Mike Lee (R., Utah) and Ted Cruz (R., Texas), the Department of Justice has long been favoring abortion clinics in its enforcement of accessibility laws, while declining to enforce said laws to protect houses of worship. The Freedom of Access to Clinic Entrances Act (FACE) prohibits the use of force or obstruction to prevent someone from obtaining “reproductive services,” but the same law also prohibits the obstruction of a place of religious worship.
The Justice Department has used FACE to pursue a number of cases involving abortion access, but, by its own admission, has not enforced the law in religious-freedom cases where individuals were harassed or attacked while attempting to attend a religious service. In response to an inquiry from Cruz and Lee earlier this year, the department claimed that its failure to pursue such cases was because other statutes “broader in scope” than FACE — such as statute 18 U.S.C. § 247 — exist to protect houses of worship.
But Lee and Cruz’s new letter, sent to the department this Tuesday, dismantles that argument, providing three reasons why FACE offers stronger and more effective protections for religious liberty than § 247. First, FACE creates a civil cause of action, meaning that citizens who are threatened or harassed while attempting to attend religious services are able to bring their own civil action for legal relief. Furthermore, under FACE, the government can bring a civil suit on behalf of such a citizen, a fact that Lee and Cruz say “greatly enhances the protection for those exercising their right to worship.”
In addition, the criminal provisions of FACE are broader than those of § 247, which criminalizes only violence and intimidation motivated by a specific animus toward the religion of a location or individual. Meanwhile, FACE criminalizes all intentional acts, regardless of the animus associated with them. Finally, FACE has a much lower prosecutorial bar than § 247, meaning that criminal cases can be pursued under FACE even when the Department of Justice doesn’t deem such a case strictly necessary for “substantial justice,” as § 247 requires.
As a result of these facts about FACE and § 247, Lee and Cruz assert that the Justice Department’s rationale for neglecting to pursue religious-freedom cases is fundamentally flawed. Even aside from the merits of FACE’s provisions, however, the senators note that the department does not have the authority to decide when and if a certain law merits enforcement. “If protection is extended to abortion clinics under FACE, then it ought to be extended to houses of worship suffering FACE violations as well,” they write.
Cruz and Lee cite the example of the Los Angeles Temple of the Church of Jesus Christ of Latter-day Saints, which in 2008 was blocked by over a thousand protestors, intimidating and harassing the Mormon individuals for their support of California’s Proposition 8, a measure that defined marriage as between one man and one woman. The Justice Department told the senators that it did not enforce FACE against the protestors because it was unaware of the situation, but this seems unlikely given the national-news coverage the protests garnered.
Both senators had voiced these concerns earlier this year, but felt that the department had not adequately addressed them. They also have included in their letter a list of additional demands, including a request for records providing the date, location, organizations, discussions, conferences, and meetings related to either an abortion-access case or a religious-freedom case. With this information, Cruz and Lee hope to further substantiate their claim that the Justice Department favors abortion clinics over houses of worship.