Stanley Carlson-Thies

Revisions proposed to the Equal Treatment regulations in nine federal departments retain strong protections for the religious identity of faith-based organizations that receive federal funds while solidifying religious protections for beneficiaries. Current concerns about religious freedom in the context of same-sex marriage and SOGI (sexual orientation and gender identity) nondiscrimination are not addressed though.

On August 6, 2015, the Departments of Agriculture, Education, Health and Human Services, Homeland Security, Housing and Urban Development, Justice, Labor, and Veterans Affairs, and the US Agency for International Development, published in the Federal Register draft revisions (NPRMs: Notices of Proposed Rulemaking) to the Equal Treatment regulations for their respective departments. Comments are due by Oct. 5, 2015 (Sept. 8 for USAID).

The Equal Treatment regulations, sometimes called the faith-based regulations, are based on President George W. Bush’s Executive Order 13279 (Dec. 12, 2002), which reflects US Supreme Court church-state rulings and the Charitable Choice legal provisions added to the welfare reform law and several other federal programs during the Clinton administration.

The draft regulatory changes are based on the small set of revisions to the Bush rules proposed to President Obama by the first Advisory Council on Faith-Based and Neighborhood Partnerships. The Advisory Council was advised by a diverse task force of church-state experts, including Stanley Carlson-Thies of IRFA. The President accepted the revisions in his Executive Order 13559, “Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations” (Nov. 17, 2010), and initiated a process of regulatory review and revision.

The main changes:

Explicitly religious activities. The regulations currently state that federal grant and contract funds cannot pay for “inherently” religious activities. For greater clarity, the term will be changed to “explicitly” religious activities—that is, “activities that involve overt religious content such as worship, religious instruction, or proselytization.” The administration notes that organizations are not restricted from providing services because of a religious motivation and that it is not illegal for a beneficiary in a program to volunteer a religious answer in response to a question or discussion. The regulations will continue specifically to protect the freedom of faith-based organizations to offer, separately from the federal grant or contract funded program, religious teaching and religious activities, to which beneficiaries may be invited.

Guaranteed referral. The revised rules propose that a beneficiary who objects to the religious character of a provider will have the right to be referred to another provider. The other provider should be accessible, equivalent in quality, federally supported, and able to accept another beneficiary. (The right does not apply in USAID programs; overseas, it is unlikely that another federally funded service provider will be accessible nearby.) The alternative provider can be another religious organization unless the beneficiary will only accept a secular organization. If, after a fair effort, the original provider cannot locate a suitable alternative, the duty is transferred to the government agency that is funding the service.

Note that the Equal Treatment rules already state that a beneficiary cannot be turned away for religious reasons by a service provider and cannot be required to engage in religious activities. The guaranteed alternative, which currently exists in some federal programs governed by Charitable Choice, is a super-protection. Indeed, the NPRMs note that the federal government is unaware of any beneficiary ever having evoked the right in any of those Charitable Choice programs.

The Administration suggests that the referral right, if ever exercised, will require of a faith-based organization at most two hours of effort to identify a suitable alternative for the beneficiary. That might be a serious under-estimate. Faith-based organizations can submit alternative estimates. An oddity: voucher-type programs give beneficiaries a choice of provider to start with, and yet, perhaps due to a lack of care in drafting the proposals, only some of the draft NPRMs say that the referral duty will not apply in voucher-type programs.

Notice of beneficiary rights. The draft regulations would add a new requirement that faith-based organizations provide to beneficiaries in grant- and contract-funded programs a written notice of their religious rights: no religious discrimination when seeking and receiving services, no required participation in explicitly religious activities, and the right to an alternative provider. A sample written notice is provided.

“Direct” and “indirect” federal funding. The draft rules carefully distinguish between “direct” federal funding, where the government designates the provider that will serve the beneficiary, and “indirect” funding, where the beneficiary can choose among several providers, including a secular option, after which the government pays the chosen provider. This is an important distinction, as the NPRMs note, because when the funding is indirect, religion can be infused into the federally funded services. The NPRMs also note that funding for chaplains and for organizations supporting the work of chaplains, e.g., in prison settings, is not to be regarded as “direct” funding that cannot be used for “explicitly” religious activities. The government funds chaplains, after all, so that people kept from their normal religious activities due to government restrictions (prison, the military), can enjoy their constitutional right to religious exercise.

Protections for providers’ religious identity. The Equal Treatment regulations already include a host of protections for the religious character of faith-based organizations, such as the right to an equal opportunity with secular organizations to compete for funding; the freedom to maintain a religious name and mission statement, a religious governing board, and religious symbols in the space where federally funded services will be offered; and the right to offer explicitly religious activities (but separately from directly funded services). The regulations also emphasize that a religious organization does not give up its right to consider religion when hiring simply because it accepts federal funds (although some federal funding programs do ban religious job discrimination).

All of these protections are left intact by the proposed changes. In several NPRMs, the Equal Treatment regulations are reorganized, and so these various protections are explicitly restated in the newly revised pattern—including the right (unless specifically limited by another law) to hire by religion. Although some advocacy groups have criticized the administration for not using these revisions as an opportunity to ban religious hiring, the administration instead defends the freedom, e.g., in the Homeland Security NPRM.

On the other hand, although the NPRMs acknowledge that religious organizations have recourse to the Religious Freedom Restoration Act (RFRA) when faced with the restriction on religious hiring that exists in some federal funding laws, the administration did not take this opportunity to provide a regulatory procedure by which faith-based organizations could evoke RFRA. However, the Department of Justice elsewhere has detailed a procedure (e.g., in a memo for the Violence Against Women Act programs) and the regulations implementing Charitable Choice for the Substance Abuse and Mental Health Administration (SAMHSA) specifically do outline a procedure.

No politicized grant decisions. Because of concerns that decisions about awarding federal funds might be politically steered toward—or away from—one or another applicant because of the applicant organization’s religion or lack of religion, the NPRMs propose adding a requirement that the officials who decide on awards must avoid “political interference” and even the appearance of such, and instead make their decisions on the basis of “merit, not on the basis of religion or religious belief.”

Publicizing the rules. Equal Treatment regulations do little actually to create a level playing field for faith-based organizations willing to consider partnering with government if the rules are not prominent in the minds of federal officials and readily available to interested faith-based organizations. The Bush administration created the White House faith-based Office, and counterpart faith-based Centers in the main federal departments and agencies, in significant part to highlight these rules, to provide guidance to officials, and to provide training to faith-based and secular community organizations. The Obama administration has maintained the Office and Centers but not the same vigorous training and communications effort about the Equal Treatment rules. Fortunately, Melissa Rogers, head of the White House Office of Faith-Based and Neighborhood Partnerships, has said that once these regulatory changes are finalized, there will be reinvigorated training and communications initiatives.

SOGI nondiscrimination. The NPRMs do not directly address nondiscrimination with respect to same-sex marriage, sexual orientation, or gender identity. These were not the prominent issues they are today when the Equal Treatment regulations were first promulgated, when the Advisory Council deliberated, and when President Obama issued his Executive Order on faith-based principles. And the Obama administration has essentially treated them as separate issues from the religious freedom that faith-based organizations should have. And yet they are not separable: a faith-based organization eligible for participating in federal programs according to the Equal Treatment regulations may in fact be excluded because other federal rules apply SOGI and same-sex marriage nondiscrimination requirements without any accommodations for religion. The next revisions to the Equal Treatment regulations ought to address this problem.

Vouchers. The NPRMs valuably set out how vouchers and other forms of “indirect” federal funding differ from the usual “direct” funding (grants and contracts), including the freedom, with vouchers, for some of the service choices the government supports to include religion as part of the services. This is an important difference, for, outside of government funding restrictions, social services, education, and health care are often delivered in a holistic way that includes a religious or spiritual dimension. Funding mechanisms—“indirect” funding—that allow such providers and services to be among the options that can be chosen by people the federal government seeks to help ought to be preferred above grant or contract funding, where possible. These NPRMs were not the place to discuss which types of funding the federal government ought to choose for different services—and yet regulations do guide officials in administering programs, so guidance that would encourage greater use in federal programs of “indirect” funding would be both appropriate and good.