Equal Treatment Regulations

Through the latter 1990s, Congress added Charitable Choice language to a set of federal social service programs, tracking the U.S. Supreme Court’s turn from a “no aid to religion” interpretation of the First Amendment to its adoption of a “neutrality” or “equal treatment” position. What then about the many federal social service programs lacking the Charitable Choice language?

In December, 2002, President George W. Bush issued Executive Order 13279, requiring “Equal Protection of the Laws for Faith-Based and Community Organizations.” This executive order in effect specified that the Charitable Choice principles must guide all federal social service spending. Over the next few years, various federal agencies reviewed their regulations governing awards of funding to private organizations and, through the normal rule-making process, proposed revised regulations, solicited public comment, and then promulgated final regulations called “equal treatment” or “equal opportunity” regulations.

These all follow the basic Charitable Choice principles: 

1. Equal eligibility.  Religious organizations, however religious they may be, are eligible for federal funding equally with secular organizations. In deciding which provider should get a contract or grant, officials must not be biased against religion and not biased for religion or for some particular religion. The only question is:  which applicant will do the best job?
   
   
2. Protected religious identity.  Religious organizations do not need to water-down their religious identity to be eligible for federal funds. Instead, the rules specifically protect their religious features. They can have a religious name and a religious mission. They can have imams or priests in the executive office and on the governing board. They can offer voluntary religious activities that they fund themselves, even when they also provide government-funded services. And the religious organizations can continue to hire based on religion even though they receive federal funds. Even if the federal program law forbids religious hiring, the faith-based organization can appeal to the federal Religious Freedom Restoration Act to continue its hiring practices, as the Obama administration acknowledged.
    
3. Beneficiary protections. The organizations must not turn away eligible beneficiaries because of their religion or lack of it. The organizations must not compel beneficiaries to participate in religion. Beneficiaries must be offered an alternative if they object to a faith-based provider (this was required in some versions of Charitable Choice).

4. No direct payment for religion. Federal grant and contract funds—that is, “direct” funding—cannot pay for explicitly religious activities such as prayer, religious instruction, or proselytization, or for religious items like Bibles. An organization that offers religious activities on a voluntary basis has to keep the religion separate in time or location from the directly-funded services.
   

If choice, religion can be offered. Sometimes the federal funding comes to a faith-based provider in an “indirect” way—the government provides a scholarship or child-care certificate to the beneficiary and then the beneficiary chooses a provider. In this case, the faith-based organization can include religious activities and religious teaching as part of the federally funded services that it offers.

Subsequent presidential administrations, while largely maintaining the Equal Treatment regulations, have amended them in various ways. 

The Obama administration, following the advice of its broadly representative President’s Advisory Council on Faith-Based and Neighborhood Partnerships, expanded from some Charitable Choice programs to all federal social services programs the right of beneficiaries to a referral to another provider if they objected to the religious character of the initial service provider. And it mandated that beneficiaries receive written notice of this and other rights. 

The Trump administration, near the end of its term, removed the referral and notice requirements. These were obligations placed only on religious organizations, creating an unequal burden on religion, and the referral obligation could force a religious provider to actively help a beneficiary connect with another provider whose practices violated the religious provider’s convictions. The administration also eliminated the requirement that, for funding to be “indirect” such that a provider could incorporate religion into its federally funded service, beneficiaries must be able to choose among a set of providers that includes at least one that offers secular services. All that is needed is a choice of provider, the administration said; the requirement of a secular option could lead officials simply to exclude those faith-based organizations whose services incorporate religion.

The Biden administration, as of mid-2022, had given notice that it was reviewing the Trump administration’s changes to the Equal Treatment regulations. Some key figures in the administration’s faith-based initiative are known to have criticized the Trump changes as unwise and possibly unconstitutional.