On December 17, 2020, the outgoing Trump administration published a consolidated Final Rule amending the equal treatment regulations governing federal funding in the major agencies that support social assistance programs. These include the U.S. Departments of Health and Human Services, Labor, Housing and Urban Development, Justice, Education, Veterans Affairs, Homeland Security, and the Agency for International Development.
The revised regulations clarify the right of faith-based organizations to participate equally with secular organizations in those funding programs. These changes stem from e recent U.S. Supreme Court decisions. They further the goal of the faith-based initiative to ensure the government partners with civil society organizations that best serve the needy, regardless of religious affiliation.
But other changes weaken protections for beneficiaries—the persons needing the services. The changes unbalance the regulations, as if protecting the right to funding of faith-based organizations is more important than protecting the religious rights of beneficiaries. Such unbalancing damages the public consensus that supports federal partnerships with religious as well as secular organizations. Because this regulation was adopted so late in the administration Congress, using the Congressional Review Act, can relatively easily nullify the changes. And the new administration could be tempted to unbalance the regulations in favor of restricting faith-based organizations.
The change that has attracted the most attention eliminates a guaranteed referral to another provider for a beneficiary who finds the religious character of a faith-based provider conflicts with his or her religious beliefs. Many commentators have charged that beneficiaries now will be required to endure religion-filled federally funded service programs. But grant-funded faith-based organizations still are required to keep religious activities separate from the government-supported services (they can invite beneficiaries to participate in those extra activities).
The guaranteed referral, though rarely if ever requested in practice, is a “super” religious freedom protection, ensuring that, for example, a Muslim person sent to a Jewish service provider—or a Catholic or Southern Baptist or Hindu one—could request a secular provider, a secular environment, instead. The referral was designed to reassure minority faith communities and members of the public who are concerned about religious coercion. It underscored the commitment of both the government and faith-based providers to protect everyone’s religious freedom.
The Trump administration, however, concluded that the referral is not constitutionally required but rather has constitutional defects. A Catholic provider, for example, might have to refer an expectant mother to the local Planned Parenthood at her request. The referral would not be for abortions but nevertheless would require actually connecting the pregnant woman to a provider of abortion services, violating the religious freedom of the Catholic provider. Moreover, the duty to make referrals, and the related duty to tell beneficiaries of their religious rights, was imposed only on faith-based grantees, nonsecular organizations, thus creating an unequal burden.
IRFA, together with the Christian Legal Society, the National Association of Evangelicals, and the Christian Alliance for Orphans, submitted a comment when this and other changes were first proposed, recommending that the administration not eliminate the referral and notice requirements. Instead, we argued the administration should also impose the requirements on secular grantees (taking away the unequal burden), while making the government, and not the grantee, responsible for making referrals (taking away the possibility of infringing on the religious convictions of grantees). This alternative would have strengthened, rather than weakened, the consensus on the faith-based principles.
The other major change redefines “indirect” federal funding of services. Indirect funding provides a voucher or scholarship to a beneficiary who uses it to obtain services from a chosen provider. In this arrangement, it is not a constitutional violation if a provider’s services incorporate religious elements such as prayer or devotional Scripture reading. That is because it is the beneficiary, in an act of religious exercise, who determined where the federal funding would go, rather than a government official unconstitutionally “establishing” religion by directing government funds to a religious program or service. For beneficiaries to have full and fair choice, the equal treatment regulations had specified that the array of providers must include at least one that is offering non-religious services.
The secular option requirement is now gone. Moreover, whereas before a beneficiary could refuse to participate in the religious elements of a service, now he or she cannot do so. This latter change makes sense: a beneficiary should not be able to avoid participating in activities the provider considers central to its services. Rather than sit out religious activities, the beneficiary can choose one of the other services that is secular. However, under the changed regulations, the government need no longer ensure that some services will be secular. A beneficiary might well discover that all of the choices are religiously unacceptable and either will miss out on services that should have been accessible or, to obtain the help, will need to participate in religious activities that he or she finds religiously mistaken.
The administration says that, in any case, the beneficiary still has some kind of choice. But the government’s position misinterprets the U.S. Supreme Court’s 2002 Zelman decision that validated indirect funding, in IRFA’s view; the administration claims that it is constitutionally inconsequential that a person entitled to services might only be able to participate in the service by sacrificing his or her religious freedom. Although this rewriting of the rules has been less remarked upon by commentators, and notwithstanding that the large majority of federally funded services are “directly” funded, this dramatic change in the concept of indirect funding represents an even more severe undermining of the consensus supporting the equal treatment regulations and the level playing field goal.
The faith-based initiative has been sustained over multiple administrations, both Republican and Democratic, because of the broad consensus on its church-state principles. Curtailing protections for beneficiaries unbalances that consensus and, regrettably, invites efforts to change the rules to the detriment of faith-based providers.