Throughout American history, religious organizations have cooperated with our federal, state, and local governments to deliver essential medical and social services to the poor and downtrodden. Faith-based charities, hospitals, and schools have long been cornerstones of our civil society and enjoyed the rightful protection of the Constitution. Recent regulations released by the Biden administration, however, will undermine these groups’ effectiveness and infringe upon their religious liberty.

The Biden administration’s new regulations, finalized on March 1, trace their roots to the George W. Bush administration’s “charitable choice” efforts. The Bush administration had promulgated guidance for all federal agencies in 2002 that sought to encourage faith-based charities’ participation in federal social-service programs. The Trump administration, partially in response to the Supreme Court’s recent Free Exercise cases, built upon those Bush-era efforts with 2020 guidance expanding participating providers’ religious-liberty protections. Biden’s new rule reverses course, scaling back these groups’ religious freedom.

Two aspects of the new rule are particularly problematic. The first concerns the so-called “direct-indirect” funding distinction. The federal government’s longstanding rule has been that when a faith-based concern receives “direct federal financial assistance,” its services must be secular. When the organization gets so-called “indirect aid”—that is, when it receives federal funds from a private individual’s free choice—it can integrate religious content into its programming.

When the Bush administration incorporated this distinction into its charitable-choice regulation decades ago, it assumed that the First Amendment’s Establishment Clause likely prohibited the government from directly funding explicitly religious programming. But recent Supreme Court decisions have undermined this assumption. The Court, most recently in the 2022 case Carson v. Makin, has held that the Free Exercise Clause bans the government from excluding providers from public programs, either because of their religious status or because their programing includes religious content. This calls into question Washington’s longstanding rule that recipients of “direct aid” must offer only secular services to participate in federal programs. Of course, because many faith traditions draw no distinction between “being religious” and “doing religious things,” asking faith-based groups to scrub their programs of religious content to participate in direct-aid programs presents them with what the Supreme Court in Trinity Lutheran Church v. Comer (2017) deemed an unconstitutional choice: either “participate in an otherwise available benefit program or remain a religious institution.”

While the administration could have used this rulemaking to correct course and eliminate the outdated direct-indirect aid distinction, it did the opposite, narrowing the definition of what constitutes “indirect aid” and restricting the rights of religious providers participating in indirect-aid programs. According to the new regulations, “whether a program affords beneficiaries genuinely independent and private choices”—that is, whether it is an “indirect aid” program—depends in “significant” part on the “availability of adequate secular alternatives.” If inadequate secular alternatives to a faith-based provider’s services are available, such a group will be required to “observe the same conditions that the regulations attach to direct aid.” In other words, unless federal bureaucrats are satisfied (by criteria that remain unclear) that beneficiaries have “adequate” access to secular programs, religious providers will have to secularize to participate. Even for those that the government deems to be indirect-aid-receiving entities, the new rule rescinds previous guidance that allowed such entities to require service recipients to participate in all activities, including religious ones, that are “fundamental to [the provider’s] program.” That could make it untenable for some faith-based organizations, especially those whose religious commitments preclude the separation of sacred and secular, to continue participating in important programs.

The second problematic change is the administration’s scaling back of faith-based groups’ freedom to select employees who share their religious mission and worldview. The applicable federal antidiscrimination law, Title VII of the Civil Rights Act of 1964, prohibits employers from discriminating on the basis of race, color, religion, sex, and national origin. But Title VII explicitly does not apply to a religious organization’s employment decisions about individuals who “perform work connected with the carrying  . . . of [the organization’s] activities.” The Trump administration, in keeping with most federal courts, interpreted this exemption to allow religious groups to favor employees who embrace their religious “tenets” as a condition of employment. This understanding of Title VII’s religious liberty protection gave providers the peace of mind that federal agencies would honor their right to ensure that their employees fully embraced their religious mission.

While acknowledging that all government programs are bound by Title VII’s religious-employer exemption, the Biden administration excised the language from previous guidance allowing religious enterprises to require their employees to adhere to their religious “tenets.” This restrains their religious freedom by limiting (or eliminating) their ability to consider potential employees’ religious beliefs. Such restrictions are apparently in tension with recent Supreme Court cases guaranteeing religious organizations the freedom to select employees who perform what are broadly conceived as “ministerial” roles.

These portions of the administration’s new regulations either violate existing federal laws protecting religious liberty, are unconstitutional, or both. Those without such statutory or constitutional problems still impose new burdens that will lead some religious enterprises to pass on participating in important programs at all. For those faith-based organizations that do continue to participate, the new rules will unnecessarily restrict their religious freedom and autonomy, and in so doing, will undermine their effectiveness. Religious providers, and the many millions of men, women, children, and families whom they serve, deserve better.

Photo by Ted Fitzgerald/MediaNews Group/Boston Herald via Getty Images


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