By Dr. Stanley Carlson-Thies

On January 17, 2020, the Trump administration proposed significant changes to the federal Equal Treatment regulations in major federal agencies. These regulations, which date back to the George W. Bush administration, and were amended by the Obama administration, are designed to create an equal opportunity for faith-based organizations to compete for federal funding without minimizing their religious character. The Trump administration argues that changes are needed to ensure that faith-based organizations are not discriminated against and for their religious freedom to be fully protected. The thirty-day period for public comments ends on February 18, 2020.

Notices of proposed rulemaking (NPRMs) were published in the Federal Register for the Departments of Health and Human Services, Labor, Justice, Education, Agriculture, Veterans Administration, and Homeland Security, and for the U.S. Agency for International Development. These NPRMs propose essentially the same modifications to the existing regulations, although with some variation due to differences in the current rules and in departmental programs. There is also a Department of Education NPRM, which is organized differently and proposes many additional changes.

The Equal Treatment regulations are based on the Charitable Choice principles first enacted by Congress as part of the 1996 welfare reform law. The Charitable Choice principles require that government officials be biased neither against nor for faith-based applicants for funding, provide specific protections for the religious character and practices of faith-based recipients of funding, require that government grant and contract funding not be used to pay for explicitly religious elements like prayer and holy writings, and ensure that people seeking federally-funded assistance are not excluded for religious reasons nor forced into religious activities. When beneficiaries are given vouchers or scholarships so they can choose which provider to utilize, then the provider can offer services that incorporate religious activities and teachings.

President Bush ordered in a December 2002 Executive Order that the Charitable Choice principles should govern the participation of faith-based organizations in all federally funded programs, and over the next years the principles were transformed into Equal Treatment regulations for the federal departments that operate funding programs. President Obama issued a slightly modified set of guiding principles in a November 2010 Executive Order, and in April 2016, a revised set of Equal Treatment regulations was published. His major change was to require that, in all federal funding programs, faith-based organizations must provide a referral to a different organization to any beneficiary who objects to the religious character of the first provider. This was an extension of a provision in Charitable Choice where, however, it was government officials who had to be prepared to provide a referral to a different organization, if requested. While the referral option is an important safeguard for beneficiaries who might, for a variety of reasons, object to receiving services from one or another faith-based provider, the government is unsure that it has ever been requested.

In his May 2018 Executive Order regarding the faith-based initiative, President Trump largely maintained the longstanding principles, which for more than 20 years have enjoyed broad support as common ground principles. His major change was to reject the requirement of providing a referral. The administration pointed out that, for example, a Catholic provider might end up having to refer someone to an organization that, among other things, offers elective abortions–a required referral that would violate the convictions of the Catholic organization.

It is in response to this Trump Executive Order, and also in response to the Attorney General’s “Memorandum on Federal Law Protections for Religious Liberty” (October 6, 2017) and the U.S. Supreme Court’s 2017 Trinity Lutheran decision, that these multiple NPRMs have now been published. One of the proposed changes is prompted by a reconsideration of the Supreme Court’s 2002 Zelman decision concerning the use of vouchers to fund services.

The NPRMs propose seven important changes to the Equal Treatment regulations:

1. No referral: Elimination of the requirement that faith-based organizations provide a referral if requested, and the related requirement that faith-based organizations provide to beneficiaries a notice of this referral right and other protections against religious discrimination and pressure. The administration notes that the referral and notice burdens are placed only on faith-based organizations, not their secular counterparts, and says that, given that few, if any, referrals have ever been requested, the government cannot rightly consider the right to a referral to be so important as to justify burdening faith-based organizations.

My Comment: Rather than eliminate the referral and notice requirements, revised regulations should expand these requirements to all organizations receiving federal funds, secular as well as faith-based. But the burden of making the actual referral should be placed on the government agency involved, not the faith-based or secular provider, which, in any case, may well not be aware of the various alternative choices. These changes would eliminate the potential conscience problem a referral can entail. And they would eliminate the injustice of imposing additional requirements only on faith-based organizations. But this way of solving the problems noted by the administration would preserve the current special solicitude for the religious rights of beneficiaries. Beneficiaries, and not only faith-based providers, have religious freedom rights. Moreover, preserving this special solicitude would help to maintain the broad support that the Charitable Choice and Equal Treatment rules have enjoyed. It should be stressed that the referral requirement was expanded to all federal funding programs from the original few Charitable Choice programs at the explicit recommendation of a multi-faith task force that advised the Obama administration.

2. “Indirect” funding: Redefinition of the requirements for funding to be considered “indirect” (or voucher) funding, rather than “direct” (or grant or contract) funding. Currently, for funding to be indirect, such that a faith-based provider can offer services that integrate religious elements, not only must the funding be routed through the choice of a beneficiary who is given a voucher or a scholarship, but the beneficiaries’ service options have to include at least one non-religious provider. The administration argues that the U.S. Supreme Court did not specifically require the presence of one or many secular choices in its Zelman school choice decision, and so the Equal Treatment regulations also should not make that requirement.

My comment: While the Zelman decision did not specify that parents given vouchers must have the option of choosing a secular option, the parents, in fact, did have a secular alternative. In the Zelman case, the vouchers enabled parents to choose from among available private schools, many of which were religious. Even if all of the private schools were religious, however, the parents still had the option of sending their children to the local public—secular—school. That is, as the court realized, they did have a secular option. Because the government must not compel religious exercise nor penalize people on account of their religious or secular convictions, beneficiaries who should be able to receive a service, or who are required to attend a service provider (e.g., as a condition of parole), must have the option of a nonreligious provider.

3. Religious accommodations: Addition of a notice that the government must provide accommodations for the religious exercise and religious character of faith-based organizations, as required by and to the extent required by law and constitutional principles. This statement added to the regulations, along with new language to be added to announcements of funding opportunities and announcements of awards made, are intended to make clear to faith-based organizations their right to equal treatment and to respect for their religious exercise and religious character, at every stage in the federal funding process. Such notice can be especially important when a faith-based organization receives a subgrant through a state or local agency or through a non-governmental intermediary or “pass-through” organization, rather than from a federal agency.

4. Required participation: Provision that a beneficiary who, in an “indirect funding” or voucher program, chooses to receive services from a faith-based provider can be required to participate “in all activities that are fundamental to the program,” including activities that include explicit religious elements. This is an important change because, in an indirectly funded program, religious elements can be integral to key portions or all of the program, so that a right not to participate in religion is tantamount to permission to avoid participating in the services offered. A beneficiary who objects to religious elements has the opportunity to choose a different program.

My comment: However, as noted above, a different proposed change can have the consequence that an indirect funding program will not offer beneficiaries a non-religious option. If so, the proposal that beneficiaries can be required to participate in all key elements of a program entails that a beneficiary might be faced with the choice of either participating in activities that violate his or her convictions or missing the opportunity to receive the federally funded service. The solution is to keep this new participation requirement while maintaining the existing requirement of a nonreligious option in indirect funding programs.

5. Tenets and not only beliefs: Clarification that the religious staffing right, which is not given up simply because a faith-based organization accepts federal funds, is a right for the organization to assess potential employees on the basis of whether they adhere to the “religious tenets” of the organization and does not mean that organizations can only ask whether an applicant claims to agree with the religious beliefs of the organization.

6. Religious staffing: Clarification that, in the relatively few federal programs where all recipients of the federal funds are subject to a range of employment nondiscrimination requirements, including a ban on religious discrimination in hiring, a faith-based applicant may have a legal or constitutional right to challenge the restriction on religious staffing. A 2007 Department of Justice memorandum maintained through the Obama administration and affirmed by the Trump administration makes it clear that, because of the Religious Freedom Restoration Act of 1993 (RFRA), a faith-based applicant faced with a ban on religiously based employment decision may have the right to have the ban set aside.

My comment: Because this RFRA-based protection of religious staffing is both important to many faith-based organizations and well-established in federal law and practice, the revision to the regulations should go further to explicitly state the possibility of an appeal to RFRA and even to set out a process for making such an appeal.

7. Nonprofit status: Affirmation that a faith-based organization with a religious objection to registering with the IRS as a 501(c)(3) organization can demonstrate by other means than 501(c)(3) status that it is a nonprofit organization, if a funding program requires nonprofit status.

My comment: This is a worthwhile but unnecessary statement, since the regulations already provide that any applicant can utilize specified alternative means to demonstrate nonprofit status.

Implementation by federal, state, and local governments. A related statement from the Office of Management and Budget (OMB) dated January 16, 2020, requires that all federal agencies that provide federal funding must publish within 120 days policies showing how they will ensure that their federal grant programs respect religious freedom. More importantly, this OMB statement warns state and local governments that receive federal funds and then award the funds to faith-based and secular providers that they must not violate the religious rights of faith-based providers, even if a state’s constitution or laws requires restricting those religious rights. A state or local government that violates the religious rights of faith-based organizations can forfeit the federal funding and be excluded from future federal funding.

Comments on the various NPRM are due no later than February 18, 2020, and can be easily submitted via http://www.regulations.gov. Consult each specific NPRM to find out how to comment on its proposed changes.

Dr. Stanley Carlson-Thies is founder and senior director of the Institutional Religious Freedom Alliance, a division of the Center for Public Justice.