By K. Hollyn Hollman
On October 5, the BJC, working with a broad coalition of dozens of organizations, submitted comments on proposed regulations that would govern partnerships between the government and faith-based social service providers. These regulations from nine federal agencies demonstrate a move toward sound resolution of a church-state conflict that has been bitterly contested for more than two decades.
In early August, the Obama administration took a significant step to strengthen partnerships between the federal government and religious organizations that provide services for those in need. The issuance of the proposed rule changes is part of a complex administrative process that will continue over the next few months. The breadth of this development, and its potential to provide consistency and protect government beneficiaries, is welcome news for religious liberty.
This is the latest in a long story that began with “charitable choice,” a legislative provision inserted into a handful of social services laws in the 1990s that affected financial partnerships between the federal government and religiously affiliated organizations.
In 2001, President George W. Bush emphasized the importance of these partnerships through his faith-based initiatives, instituting regulatory changes aimed at protecting the religious character of providers and creating faith-based offices throughout the government. Building on these developments, President Barack Obama created a bipartisan advisory council to shore up legal footing for what he re-named the White House Office of Faith-based and Neighborhood Partnerships.
The advisory council’s consensus recommendations formed the basis for President Obama’s executive order in November 2010, which established important guidelines for partnerships between the federal government and faith-based social service providers. And now, after years of work, these agencies have released notices of proposed rulemaking to implement that order.
First, the current regulations prohibit government funding of “inherently religious activities” to prevent government funding of religion, a violation of the First Amendment. This phrase has proved confusing for some faith-based providers because the services provided (such as operating a food pantry) were motivated by religious directives (for example, Matthew 25:35). The proposed regulations change the terminology to prohibit government funding of “explicitly religious activities.” Faith-based providers may not use government funding to pay for overtly religious activities such as worship, religious instruction or proselytization. The proposed regulatory changes clarify that activities must be offered at a different time or in a different location from any federally funded programming.
A second — and arguably the most important — improvement is the requirement that beneficiaries receive written notice of their rights before receiving services. The written notice would identify five basic beneficiary protections: no discrimination because of personal religious belief, no requirement to participate in explicitly religious activities, a requirement that expressly religious activities be separated in time or location from those which are federally funded, optional referral to an alternative provider, and contact information to whom beneficiaries may report organizations violating these regulations. This is a significant improvement for protecting individual rights while permitting the government to contract with the greatest number of potential providers.
With the comment period now closed, the agencies will review all the submitted comments before issuing final rules. While work remains to be done, these proposals are a significant step in the right direction for strengthening partnerships between the federal government and faith-based service providers while protecting the religious liberty rights of both the beneficiaries who receive government services and the groups that provide them.
This story has been updated to show that the proposed regulations change the terminology to prohibit government funding of “explicitly religious activities.”
From the September/October 2015 Report from the Capital. Click here to read the next story.