By K. Hollyn Hollman, BJC General Counsel
It was not fast and it did not finish the job, but the Obama administration’s executive order clarifying policies on government partnerships with faith-based organizations is important. Everyone who cares about social services and respects the First Amendment’s religious liberty protections should be thankful for this development.
The Obama amendments were primarily designed to shore up the legal basis of the existing federal policy, which was created by an executive order of George W. Bush. These amendments seem likely to reduce the risk that government money will be used to promote religion. While the Bush order stated that federal programs had to comply with the First Amendment’s Establishment Clause and Free Exercise Clause, its language failed to sufficiently capture the prohibition of government-funded religion. Worse, the weak regulatory scheme was often overshadowed by reckless rhetoric highlighting religious programs and the unsubstantiated claim that religious organizations were better at addressing social ills than their secular counterparts.
The Obama amendments make notable changes that sharpen distinctions about what is and is not allowed in a government-funded program. We are hopeful that these changes will lead to greater compliance.
First, organizations are forbidden from engaging in “explicitly religious” activities in the course of a program that receives direct federal financial assistance. The executive order maintains protection of the character of faith-based organizations, allowing them to compete and participate in federal funding programs without changing their name or impairing their independence but notes that their religious expression is protected outside the government-funded program. In other words, and consistent with long-standing standards, an organization is not prevented from competing for or receiving federal money just for being religious. The government-funded program, however, must not include religious content.
Second, the Obama amendments highlight the fundamental nature of this distinction by adding provisions for monitoring, transparency and uniformity. Throughout the order, the amendments make it clear that the rules follow the money, closing a loophole that appeared to leave those organizations that received money through “intermediaries” free from the constitutional safeguards or at least at great risk of missing important regulatory guidance.Third, while these changes should protect against any direct government funding of religious activity, additional protection is offered for beneficiaries of government-funded social services programs. Each agency that administers such programs must ensure that beneficiaries are given notice of their rights to receive social services from an alternative provider if they have objections to the religious character of the participating organization that provides services.
Last, the order creates an intergovernmental working group that will meet periodically to review and evaluate regulations, compose effective guidance documents, and generally ensure that policies government-wide are both uniform and consistent with the fundamental principles — something that has previously not been the case. Taken as a whole, the president’s amendments demonstrate that prohibiting federal financial assistance from being used to pursue religious endeavors is not just a suggestion but an essential aspect of the policy.
Many of the changes reflect reform efforts advocated by the BJC and others for the past decade. Those efforts are grounded in respect for the constitution and other laws and in the religious belief that individual consciences should be protected from interference by government. We will continue to seek protections beyond the new improved legal floor that the Obama administration has installed. We will advocate that houses of worship do not enter into financial partnerships with government without forming separate 501(c)(3) organizations designed to comply with the rules in the executive order and as a way to avoid commingling federal dollars with financial gifts from parishioners. We will also advocate for changes to prohibit religious discrimination in federally funded jobs.
Though it was not unexpected, the Obama amendments did not address the contentious issue of whether a religious organization that hires only those who adhere to its religious teachings (which is permissible with private money) can also discriminate in positions funded by the government. The issue, which was not part of the Advisory Council’s charge, will continue to be debated in the context of specific federal spending statutes, which vary widely in their treatment of the issue. Until then, denying someone a federally funded job based on religion remains a flawed part of federal policy.
It is not too much to ask our government to provide social services based on efficiency and effectiveness, as well as in compliance with constitutional principles that protect our fundamental freedoms. President Obama has taken some important steps in that direction, and we should continue to press onward.
