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Opportunity to Comment: Proposed Changes to OMB’s Uniform Guidance

The Office of Management and Budget (OMB) has proposed a sweeping overhaul of its “Uniform Guidance”—rules that apply across federal agencies that describe how grants and cooperative agreements should be administered and audited. The changes are meant to standardize, streamline, and clarify requirements; one goal is to make the federal funds more accessible to smaller organizations that are less experienced with federal grants. However, among the many detailed changes is new language that elevates LGBTQ protections while downgrading religious freedom protections. These proposed changes are not authorized by statute nor by court decisions and may complicate access to federal funds by faith-based organizations. Comments are due by December 4, 2023, and can be submitted easily via (type OMB-2023-0017-0001 into the search box to find this NPRM).

The Notice of Proposed Rulemaking (NPRM) was published on October 5, 2023. The troubling changes are proposed for Section 200.300, “Statutory and national policy requirements.” The section currently includes language in subsec. (a) requiring that grants be administered in a way that respects all constitutional, statutory, and policy principles, including principles “protecting free speech, religious liberty, public welfare, the environment, and prohibiting discrimination.” A subsec. (b) collects miscellaneous requirements. The revised subsec. (a) deletes the quoted words and thus no longer would stress the requirement to respect religious liberty in administering federal grants and cooperative agreements. A replacement subsec. (b) would require that where a statute governing a grant prohibits sex discrimination, it now also would prohibit discrimination based on sexual orientation and gender identity. And a new subsec. (c) appears to suggest that officials administering federal grants and agreements should seek to prohibit sexual-orientation and gender-identity discrimination in every program. 

The proposed new language in subsec. (b) claims that the expansion of sex nondiscrimination to encompass also sexual-orientation and gender-identity discrimination is required by the U.S. Supreme Court’s Bostock decision (2020)—but the Court explicitly said that it was only deciding about certain aspects of employment discrimination and only with regard to secular employers. It emphasized that religious organizations have protections for their policies and practices that secular organizations do not. The new subsec. (c) references “the Constitution’s Equal Protection clause,” but while saying that federal agencies “must” take account of their constitutional duties, only says that the requirements of the Equal Protection clause “may” apply to their decisions. While the revised subsec. (a) no longer names religious liberty, all constitutional, statutory, regulatory, and court-specified religious freedom protections nevertheless apply. 

It is very troubling that the NPRM proposes to deemphasize the importance of respecting religious freedom in federal grants—although religious freedom is a prime constitutional and statutory value—while stressing a prohibition on sexual orientation and gender identity discrimination that has no statutory justification and only a distant constitutional foundation. As demonstrated in our advocacy on behalf of the Fairness for All concept and the Respect for Marriage Act, the Institutional Religious Freedom Alliance (IRFA) of the Center for Public Justce opposes discrimination against LGBTQ individuals—but we believe these protections can and must be paired with strong protections for people and organizations committed to morally conservative convictions about human sexuality and marriage. At the very least, any effort to strengthen protections for LGBTQ individuals via the regulatory process must simultaneously include strong protections for religious freedom.

Faith-based organizations interested in federal grants should consider sending a Comment in response to the NPRM to register their concern. Note that many state and local grants and contracts are funded by federal grant money that is subject to the OMB Universal Guidance. For good advice on how to prepare and submit a Comment, see Public Comments on Agency Rulemaking, a resource from the HHS Accountability Project at the Ethics and Public Policy Center. 

A comment can focus on the troubling proposed changes noted above and need not touch on any of the other proposals contained in the NPRM.

  • Note that the Comment is in response to Docket OMB-2023-0017, “Guidance for Grants and Agreements.”
  • Reference 2 CFR 200.300, “Statutory and national policy requirements.”
  • A simple comment might state your concern that explicit language about protecting religious liberty is being deleted while prohibitions– lacking legal or constitutional justification –against discrimination based on sexual orientation and gender identity are being added. Such a change downplays a fundamental constitutional value, the protection of religious freedom, that must be honored in federal funding. While the proposed revised language references the Supreme Court’s Bostock decision (2020), that decision explicitly was limited to certain employment decisions and cannot legitimately be stretched into a general principle. 
  • If your organization receives or is interested in federal grant money, whether directly from a federal program or through a state or local program, say so, and state your concern that if the proposed changes are made, it may become more difficult to successfully apply for funding because of your organization’s religious commitments. 

Comments are due by December 4, 2023, and can be submitted easily via (type OMB-2023-0017-0001 into the search box to find this NPRM).

A note of appreciation: Most of the proposed changes are constructive modifications to the current rules. Positive changes include: directing federal agencies to consult with communities that will be affected when they design their funding programs (Sec. 200.202); using plain language in, and limiting the length of, grant announcements, to make them more accessible to potential applicants, and specifically naming the various types of eligible organizations (200.204); assembling diverse committees to evaluate grant applications (200.205); not requiring grantees to seek permission when choosing subgrantees, unless the grant announcement or award specified particular subgrantees (200.308); increasing  the threshold for Single Audits from $750,000 to $1,000,000 (200.501); and increasing the de minimus indirect cost rate from 10% to 15% (200.414). See the overview of changes offered by the National Council of Nonprofits and by the Wiley law firm.

Stanley Carlson-Thies is the Founder and Senior Director of the Institutional Religious Freedom Alliance (IRFA), a program of the Center for Public Justice.

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