It seems that various federal departments are working on draft regulations to implement the President’s November, 2010, Executive Order 13559, Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations. Not a moment too soon. The Executive Order specified the creation of a Working Group to evaluate existing faith-based regulations and propose any needed changes, with a report due in 120 days, sometime early in 2011. The Working Group’s recommendations were finally issued in April, 2012. Since then the Working Group has labored on guidance to various federal departments to help them evaluate their existing “equal treatment regulations” that were adopted during the Bush administration and to draft revised regulations where needed.

Apparently those revised regulations are now, at long last, being drafted. When published, there will be an opportunity for public comment before final regulations are promulgated.

Likely topics of the proposed revisions: (1) definitions of activities and items that are “explicitly religious” and thus cannot be funded with federal grant dollars; (2) how grantees and government agencies must implement a requirement that a person assigned to a faith-based provider for services may request an alternative provider; and (3) what the difference is between a service that receives “direct” federal funds vs. one that receives “indirect” federal funds.

Re (1): the existing regulations say that “inherently” religious activities and items cannot be funded by government grant funds. The Administration is convinced that the term “explicitly religious” is clearer, and the draft regulations may offer some examples. For instance, it is already clear that grant funds cannot be used to pay for Bibles nor for staff time spent leading people in prayer. It is not so clear whether grant funds may be used to pay for a study guide on drug addiction that discusses the views of different religious traditions on addiction and that advises addicts who are religious believers to ask their clergy for help in wrestling with the addiction. Greater clarity will be good.

Re (2): two federal programs already provide a guaranteed alternative, thanks to the Charitable Choice provision in their laws: TANF, the main welfare program, and SAMHSA drug treatment services. The Administration is extending the alternative to all federally funded services. But how is it to be implemented? How will a faith-based organization know what other programs are available and have open slots? What if there is no alternative? Will this requirement encourage government officials to steer grants to secular rather than faith-based organizations, in order to avoid the complication of alternative providers and assisting with referrals?

Re (3): When federal funding is “indirect” rather than “direct,” then, according to the US Supreme Court (Zelman v. Simmons-Harris, 2002), the organization providing the services may weave religious elements into the government-funded services, such as a drug-treatment program or pre-K education program. That’s because, with “indirect” funding, the government in effect gives the money to the individual beneficiary and lets the individual beneficiary choose which provider they wish to receive the needed service from. If the service that the government funds as a result of that choice includes “inherently” or “explicitly” religious activities, that’s the outcome of the (legitimate) choice of the individual beneficiary rather than the result of an (unconstitutional) choice by a government official. But for this to work, the beneficiary has to be able to select a secular provider and not just choose among religious providers. Or so it seems. The new definitions are intended to clarify the conditions under which federal funding can be understood to be “indirect” rather than “direct.”

Clarity in these matters will be useful. And the process of multiple departments proposing amendments to the regulations, evaluating the comments that are received, and then settling on and publicizing final regulations will very helpfully bring again to the attention of both outside organizations and federal (and state and local) officials just what the freedoms and limitations are when faith-based organizations seek and are awarded government funds to provide services.