S4, Ep. 16: Biden, Trump and federal regulations
Amanda and Holly discuss a type of lawmaking that often goes unnoticed by the public
Schoolhouse Rock left out a key way laws are made: The regulatory process. Amanda and Holly discuss the federal regulatory and rulemaking process and review some recent proposals and final rules from the Biden administration, including a proposed rule from nine different agencies and a final rule from the Department of Labor. They also review how these rules have changed through the Bush, Obama and Trump administrations, and they talk about the importance of balancing everyone’s rights when using government money to serve people in need.
Segment 1: How does this process work? (starting at 00:51)
Amanda mentioned this article by Annie Lowrey for The Atlantic: The Time Tax
Holly and Amanda mentioned the BJC Advocacy Team, a group of people who get email alerts about opportunities to reach out to government officials to make themselves heard. You can join up by signing up for BJC’s email list and checking the box to join the BJC Advocacy Team.
The Federal Register – which contains notices and proposed rules – is available online.
Segment 2: Three areas of proposed regulations where BJC filed comments (starting at 10:12)
As mentioned, The White House Office of Faith-Based and Community Initiatives under the Bush administration was sometimes abbreviated “WHOFBCI,” which some pronounced as “Whoof-book-ee.”
For more on regulations proposed by the Trump administration, listen to episode 4 of season 1 of the podcast: On the Regs: Faith-based regulations from the Trump administration
For some additional history of the White House’s faith-based office, read this 2015 article by Holly Hollman: BJC weighs in on proposed faith-based regulations, affirms progress
Learn about the new proposed regulations from the Biden administration in this post on our website: Biden administration proposes new rules reinstating important religious liberty protections for beneficiaries of federal funds
Segment 3: A finalized regulation on federal contractors (starting at 29:58)
Amanda read the statement from Holly that BJC released February 28 reacting to the final rules from the Department of Labor.
For more information on this topic, visit the website of the Office of Federal Contract Compliance Programs from the Department of Labor. It includes additional details and resources on Executive Order 11246, which bars discrimination in federal contracting.
Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC.
Transcript: Season 4, Episode 16: Biden, Trump and federal regulations (some parts of this transcript have been edited for clarity)
Segment 1: How does this process work? (starting at 00:51)
AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.
HOLLY: And I’m general counsel Holly Hollman. Today we’re going to talk about religious liberty law and federal regulations — and particularly regulations that should ensure the proper relationship between the institutions of religion and government when federal funding is involved. In the past, we’ve discussed this topic of federally funded social services and the long-standing role of religiously affiliated entities as part of our country’s social safety net that provides services to those in need.
In particular, BJC has been involved in policymaking about how financial partnerships between government and nongovernmental organizations — including religious organizations — must be carefully designed consistent with our laws and traditions that value religious liberty. That religious liberty tradition has long reflected the principle that the government itself does not fund explicitly religious activity.
AMANDA: And when we were preparing for this conversation today, Holly, we do recognize that today’s topic is a little different from some of our recurring topics here on Respecting Religion, when we often talk about religious liberty law in court cases or in legislation.
Instead, today we’re going to look at a couple of recent examples of regulatory activity that illustrate, first, an important government process and, second, the state of the law that affects beneficiaries of social services — beneficiaries being individuals that qualify for government assistance, whether that be a program that provides food assistance or job training, for example. We are also going to talk about regulations that protect employees from discrimination based on protected categories such as religion, sex, race, and ethnicity.
So starting with the process, I know that BJC has recently provided comments to proposed rules, Holly, that you and our legal team, particularly Jennifer Hawks, worked on these comments and participate in coalitions to influence regulations. So we’re going to talk about that.
But before we do, we should explain a bit about the regulatory process. Now, this is a topic that allows citizens to engage with the government and one that is often overlooked. You know, there’s a lot of lawmaking that occurs after Congress acts and in between congressional actions, not to mention what happens on the state and local level. Today we are focused on federal law.
Congress does pass these acts, but then they leave a lot to the executive branch to actually implement the law, and there are entire classes in law school on administrative law ‑‑
AMANDA: — on this entire process. And it makes sense, because this law, this federal regulatory law, touches our lives in many direct ways and in ways that, I think, we don’t often talk about and are underreported. So these are exactly the kind of conversations we like to have on Respecting Religion.
And in preparing for today’s conversation, I was reminded of an article that actually came out a couple of years ago in The Atlantic called “The Time Tax,” by Annie Lowrey. And we’ll put a link in show notes to this piece.
But it’s a piece more broadly about the federal bureaucracy, and state and local as well, and all of the ways that American citizens are tasked with doing the hard work of qualifying for some of these government programs and how the way our system is set up is pretty inequitable, how much of this burden falls on people who are struggling with financial problems, who have fewer financial means and also people from minority communities, from BIPOC communities, that they often bear the greater brunt of doing all of the extra work.
So I think that frame of who is at stake and where this burden is falling is important for our broader conversation today about religious liberty implications.
HOLLY: Well, I’m really glad you mentioned that, because, of course, that informs BJC’s perspective in this area. So we’ve talked about this and the religious liberty law that applies and should apply when we’re thinking about how the government interacts with religious institutions.
But we’re not just thinking about how you want religious entities to participate in ways that are right and good and allow them to do so ‑‑ do things that they are capable of doing and effective doing while respecting religious liberty rights. We’re really interested in the overall endeavor.
And the overall endeavor is one that is to provide services to people in need. And as you note, Amanda, and as that article explains, you know, we do a lot of things in setting up these systems to ensure that the money is spent for what it was intended for, to make sure that people qualify. And often, as you note, people don’t have the same resources to do that.
So that has to be kept in mind when we think about religious liberty interests of both providers and beneficiaries. I think that that is essential context to this conversation.
Well, as we told our BJC advocates who want to join in our work — as we explained this process — we said, you know, the lawmaking process that we first learned about perhaps on the old Schoolhouse Rock video about how a bill becomes a law left out this whole area of making law that you just mentioned and that law school classes are filled with. It did not address that final phase of lawmaking: the regulatory process.
But before a federal agency can implement new laws, it often needs to write regulations or amend existing regulations. So an agency that is tasked with implementing a certain area of law will ask for the public’s input on potential regulations and will respond to the comments when finalizing them. And thousands of regulations can be finalized in a year, so there are many opportunities to directly influence how laws will be enforced. And BJC’s been active in this area, particularly with regard to legislation that affects the relationship between religious entities and the government.
AMANDA: And we’ve been involved in this area for a long time. You know, before I went to law school, I was a legal assistant here at BJC, and one of my jobs, I would get ‑‑ I don’t know ‑‑ weekly a stack of these paperback bound Federal Registers.
HOLLY: In the mail. Right?
HOLLY: They would come in through the mail.
AMANDA: They would come in through the mail.
HOLLY: The least interesting-looking magazines you could ever receive in the mail.
AMANDA: Exactly. They looked a little like a phone book, if anyone remembers what those looked like ‑‑
HOLLY: Right. (laughing)
AMANDA: — except they were all white pages, no yellow pages. And we would, you know, flip through and look for any mention of anything that was religious freedom related. I’ll just say, this is not terribly compelling reading. But now they have made it more accessible since then. This is all online now, so people can look it up, and it’s a lot easier to go through these regulations.
HOLLY: So we do still review the Federal Register. Often we rely on good friends of ours in coalition work to share that burden, but we always learn about regulations that affect our work and that give us opportunities to advocate for our strong principles to support faith freedom for all.
So we identify the proposed regs, and we develop comments about this, and we often alert our BJC Advocacy Team, and those are people who relate to BJC and want to know about the work we’re doing. And we’ve recently invited them to join us in commenting, because it’s fairly easy to tell an agency, government agency ‑‑ for example, tell the Department of Labor that businesses that contract with the federal government do not need expansive religious exemptions that might undermine employment protections for millions of Americans, for example.
So you’d have a regulation. Then you just file a comment, and you get it to the appropriate agency, and then later, the final rules come out. So we’ve been involved in this work a long time. We are working to make that more understandable for individuals. We know that many people are frustrated sometimes by their inability to affect some members of Congress, but this is a way that they can be directly involved in lawmaking and policy, particularly protecting religious freedom.
In fact, in the coming weeks, we will have an opportunity to comment on new regulations from the Department of Education, so stay tuned.
AMANDA: And if you’re interested in joining these advocacy efforts, we will include a link in our show notes on how to join our BJC Advocacy Team, and you’ll get email alerts that give some suggestions and instructions on how you can find these regulations, how you can submit your supportive comments or your critical comments on any of these regulations. And, again, it’s a way to influence a very important piece of lawmaking that often goes unnoticed by most of the public.
Segment 2: Three areas of proposed regulations where BJC filed comments (starting at 10:12)
AMANDA: So with that, let’s talk, Holly, about some of our most recent efforts in providing comments to proposed regulations.
HOLLY: We recently prepared comments to regulations that were proposed across nine agencies about protecting beneficiaries of government services, particularly in this context that I mentioned before of partnerships with nongovernmental organizations.
AMANDA: And by beneficiaries, we’re talking about a lot of different people who qualify for a variety of government-funded services that are provided directly through other organizations. For example, the Department of Agriculture partners with houses of worship and other neighborhood groups during the summer months to provide food to children who qualify for a free or reduced lunch during the school year.
The Department of Health and Human Services helps fund the National Domestic Violence Hotline to connect victims of domestic violence across the country to shelters and other providers who can help them leave an unsafe home environment.
The Department of Veterans Affairs partners with many faith-based and secular organizations to help veterans and their families find employment opportunities and receive housing assistance.
HOLLY: For those who have long followed the work of BJC, you would know that we have been involved in this policymaking process for a long time, and as we’ve done that, we’re getting closer, I think, to some consensus, particularly on this issue of how to make sure that services are provided efficiently and with adequate protections in ways that can best be received by those that are intended to receive these services, the beneficiaries.
AMANDA: This really goes back to the administration of George W. Bush in the early 2000s when he created the White House Office of Faith-Based and Community Initiatives.
HOLLY: Yeah. We like to jokingly call it “Whoof-book-ee” (WHOFBCI). I think our friend Michael Lieberman came up with that, “Whoof-book-ee.” We’ll do anything to try to make this fun.
AMANDA: So since the beginning of WHOFBCI, we have been following how these regulations have changed and shifted, depending on what administration. And I think the common theme has been, How do we get this relationship right — this relationship between the institutions of religion and government, when government is partnering with religious institutions to deliver social services, and we’re thinking about how best to protect religious freedom of everyone involved and particularly thinking about the beneficiaries who are seeking government services, to be sure that their religious freedom rights are being respected and upheld.
HOLLY: And I think that’s where you would hope there is the most agreement, that we should all be together when we’re talking about regulations for nongovernmental organizations. The focus should be on ensuring that the beneficiaries receive the services that are needed.
So while it is understandable, it seems like this is just back and forth and back and forth, because it did start in the early George W. Bush days, as you said, Amanda, when I think President Bush was just really highlighting a situation that we thought ‑‑ well, we know has existed for decades and decades, these partnerships. But he was putting more emphasis on the rights of religious entities to participate in federally funded programs. And there was a lot of political discussion, as well as policy discussions, that were generated by that move.
Since then, there’s kind of been a back-and-forth in different administrations, changing or sometimes just tinkering with this situation and, I think, becoming a little bit clearer that these interests are not opposite. There should not be opposing interests between religious entities and the rights of the beneficiaries. So I think we’re getting a little bit closer.
So we’re really glad to see these new regulations that just came out from the Biden administration that we provided comment on, and I think we should just highlight a couple of the substantive areas that BJC focused on in our comments.
AMANDA: And before we get to those three main areas of topic for these regulations, I do want to ‑‑ I think you’re being very fair, and you’ve lived this, Holly, as BJC general counsel throughout this entire period and seeing the back-and-forth between the administrations. For the most part, it has been tinkering or small changes, except Trump.
I think Trump’s administration came in and did something very different with the regulatory process and really shifting the emphasis on religious freedom rights and whose rights we were most looking out for and really where the balances between the rights of beneficiaries and some of the issues raised by some of the providers.
And so as we go through each of these three main areas, you know, we’ll talk about what President Obama’s administration did, then what Trump did, and then how Biden has kind of corrected from, I think, some real overreach that we saw ‑‑
AMANDA: — in the Trump administration.
HOLLY: I think that’s fair and worth noting. As we know, there were some things that were changed in the Trump administration, simply because they were Obama era. Right?
HOLLY: And I think that was part of his way of leading and governing. And that is at odds with what we had seen before, which was really kind of a back-and-forth, a conversation about government services and how they’re provided, and how religious liberty should be protected in that environment.
AMANDA: And I also think we saw Trump pandering in many ways to a religious audience and things that he thought that they were asking for. Whether or not they were is another question ‑‑
AMANDA: — but that this was part of a larger attempt to have giveaways to the religious and specifically the Christian community.
HOLLY: We signed on to comments with one of our strong coalition partners in this area, the Coalition Against Religious Discrimination. Then we prepared our own comments, just to focus on a few discrete subjects.
The first area of regulations that BJC focused on was this concern about providing an alternative provider in this context. During the Obama administration, religious providers that provided social services had to make reasonable efforts to provide an alternative provider if a beneficiary came to them but objected to the religious nature of the provider.
So imagine a social service provider, one of these religious affiliates who is providing government-funded social services, and they have a denomination. They have Baptist in their name. And a beneficiary comes, and they see that it’s a Baptist organization, and maybe there are scripture or pictures on the wall that really ‑‑ you know, that show the religious character, which is protected, of the provider, and they say, I really can’t receive services here; this brings back bad memories of something that happened at a church. Someone can object to that, and they are entitled to have an alternative provider.
Well, President Trump in the regulations removed this requirement that the provider would be responsible for helping the beneficiary get to some other place, to get to another provider. And so the new rules that we just commented on that the Biden administration has put forward, they have gone back from the Trump administration and then tried to improve upon this whole debate. And it’s a legitimate question. How many different choices can you give someone? It’s not like we have, you know, endless supply of providers for social services.
But the Biden administration rule encourages the agency — so one of these nine agencies that’s responsible for providing some service. The new rule encourages the agency to provide notice on how to obtain information about alternative providers when feasible. So it recognizes that perhaps it’s too much that every provider is going to know about every other alternative, although I think it should be in their interest.
If I’m providing services, I want the beneficiary to be able to receive them, to do everything in my power to make sure they feel comfortable and can receive the service that I’m providing with government money, and if I can’t do it, I’d like them to be able to get those services from someone else. But the new regulation ensures that the agencies, at least, have information about that and can provide notice on how to find out about other providers when feasible.
AMANDA: And I think this is an important improvement, because it puts the burden back where it should be, and that’s with the agencies that have the most resources — agencies or the providers — and not the beneficiaries themselves. I mean, the people who are seeking services are already under-resourced or they wouldn’t be seeking resources from the government, and so to put the burden on them to figure out where else they could go did seem unjust and inequitable, and so this is an improvement over what we saw under the Trump administration.
HOLLY: That really does reflect agreement generally about wanting people to be able to receive services and just a recognition that people have religious experiences that inform their perception, or sometimes they may have just perceptions of religious entities, not having any experience with them but just a perception, right or wrongly, about religious providers, or maybe they, you know, have an understanding of a particular religious group that maybe their theology and their practices don’t seem fair to them.
And just I feel like this is a good regulation that just recognizes that. Okay? Religious entities should be able to provide services. They do. They have always done that. But let’s be honest about what’s needed in order to make sure that beneficiaries don’t have extra hurdles in order to get the services they are qualified to receive.
So then related to that, the second area that BJC focused on in our comments was providing written notice of rights. So as a beneficiary comes to a program to receive certain benefits, they should get in the beginning a notice of their rights.
And in the Obama administration, the regulations provided that any religious providers involved in these social services were required to give beneficiaries a written notice of their religious freedom rights, including being free from being forced to participate in any religious activities.
That makes sense. The government funding is for particular government services — secular services — although obviously many people are involved in that work out of their religious motivation. But it’s important that the recipient understand that they have the right to receive their benefits and not be pressured into any kind of religious activity.
At least one agency, the Department of Labor, actually showed us what this written notice of beneficiary protections looks like. They say that they would give written notice that says, “Because this program is supported in whole or in part by federal assistance from the federal government, we are required to let you know that, number one, we may not discriminate against you on the basis of religion or religious belief, a refusal to hold a religious belief or a refusal to attend or participate in a religious practice.”
Number two, “We may not require you to attend or participate in any explicitly religious activities, including activities that involve overt religious content, such as worship, religious instruction, or proselytization that may be offered by our organization, and any participation by you in such activities must be purely voluntary.”
So these are the kinds of things that would be included in the written notice to beneficiaries. And it makes sense that these should be provided, regardless of the entity providing services, just to ensure that the beneficiary is protected.
Well, the Trump administration just came in and removed that requirement. And I remember someone asked me, like, who wants that removed. So maybe this is one of those areas where President Trump thought he was doing something that people wanted, but it really wasn’t wanted. Anyone who’s involved in providing government services, they are doing so based upon a government program, not a program that is about advancing religion or encouraging religious exercise.
And the only thing I know is that some people thought, hey, these entities have to follow the law anyway. They have to provide, for instance, the food assistance, and they would not ever do that by also encouraging or pushing some kind of religious exercise. To that I’d say, well, then, why not give a person notice of their rights?
AMANDA: Exactly, exactly. I mean, I do think that there were some groups that said, oh, this is somehow insulting, like you think we’re violating rights. Why do we need to tell people about their rights? But I think information, especially about our civil liberties, is always a good thing.
And so I guess responding to that criticism, whether that was made in good faith or not, you know, President Biden’s administration has again, I think, tried to build consensus by both reinstating the requirement of providing notice of rights, but saying that both secular and religious providers need to do this, and so ‑‑
HOLLY: There’s no unfairness about who’s going to give notice. It’s not suspicion. It’s just a fact that you have the right to receive your services, and you’re not required and should not be pressured to engage in any kind of religious practices.
AMANDA: So that feels like a win-win for me. More people are going to know about religious freedom rights because of this regulation.
HOLLY: Well, the third area that BJC focused on in our comments was about the definition of “indirect aid.” And that’s a topic that gets a little bit more into the nuances of church-state law. But basically in this area of providing government services, the money is going to the nongovernmental entities to provide the services, but it is possible that some of these programs can be set up to give the beneficiary a choice of different providers from which to choose. That’s what’s called a program of indirect aid, sort of a voucherized program like we’ve talked about in the education area.
And at a certain point, if you have true, genuine choice between a lot of different providers, you can really say that what the providers are doing, as well as providing the government service, but how they’re doing it is the choice of the beneficiary, as opposed to being directly related to the government.
And what we’re talking about here is those kinds of programs that might integrate the kind of social services that the government would fund, and they might integrate that with their religious practices, whether that’s prayer practices or scripture reading or what not. We know that lots of missions exist out there apart from government funding, that there are a lot of church-based or other religious institution-based ministries that deal with difficult social problems and do so with a very explicit religious perspective and practice.
And that kind of program is typically not what we want to see the government funding, not because it’s wrong or bad, but because it would involve the funding of explicitly religious activity, and there are certain explicitly religious activities that we believe should be left to the individual or to faith communities. And that’s what the separation of church and state is about. That’s what it protects, that kind of freedom.
But in this area of indirect aid, there’s a certain point in some programs where you might kind of break the chain of the government involvement with religion. And President Trump had removed some requirements related to indirect aid and seemed to sort of invite more religious activity in government program, and I would say on this point, the Biden administration really did restore and add the appropriate balance to this more nuanced area of the law.
AMANDA: Right. I mean, we can also understand that some beneficiaries might actually want one of these more faith-based programs, but if they do, we want to make sure that they’re choosing that of their own free will and not because that’s the only option available in their community and it’s not the subject of a genuine choice.
So the Biden administration in this part of the regulation added language to ensure that beneficiaries make choices, quote, “wholly as a result of a genuinely independent and private choice, not a choice of the government.”
HOLLY: That’s important language. You can’t really say that there’s a true, independent, genuine choice that avoids a problem of government funding of religion if there’s not a secular alternative among these choices, too.
So, again, this is kind of a program design element, and when I think about social services and the difficulty in accessing many of them, I can’t imagine that many are properly executed through a voucher program. I just don’t see that many contexts in which you have a lot of choices and that that’s feasible. But even so, if there is a program like that, I think these regulations do a better job of acknowledging government’s responsibilities.
So those are the three main areas of concern for BJC in filing our comments, but there are many other points that were emphasized by other groups about the changes in the regulations and different places of emphasis. And I would assume that a lot of them were concerned, the same way that we were concerned, about an overall emphasis in the Trump administration that was problematic for policymaking in this area. And that was that he was putting the focus on the providers and their need for potential accommodations for their religion instead of on the beneficiaries who are in need of federal services.
One example, while revoking the requirement to give beneficiaries notice of their religious freedom rights that we were just talking about, the Trump rules also required the agencies to give the religious providers written notice of the religious exemptions that they might qualify for and that they could seek. So, you know, that shows a clear imbalance of information and the wrong emphasis.
We know that religious liberty is fragile. It is important for all of us — that it operates in different ways, and we should always be mindful of these kind of power dynamics and relationships that could lift up the religious liberty of some while doing harm to others, and to do our best to avoid that imbalance.
AMANDA: And so just to sum it up, we think that the Biden administration regulations do a much better job of balancing those rights and correcting for that power imbalance that the Trump administration regulations exacerbated.
Segment 3: A finalized regulation on federal contractors (starting at 29:58)
HOLLY: Well, in other regulatory news, we see the end of this process. Recently a final rule was released from the Biden administration that addresses a similar issue in that it governs the relationship between private entities, specifically federal contractors and the government. But this is different from the faith-based regs that we were just discussing earlier. And this is a result of an ongoing debate about the rights of employees versus the rights of employers.
AMANDA: Right. And BJC’s position on these regulations has been consistent, because it represents a general principle of church-state law that animates our protection for religious freedom for all and specifically our concerns about government funding of religion. And, Holly, I know you are involved in many conversations about the contours of the religious exemptions and what that means for employment and that the state of law is in flux right now.
HOLLY: Yeah. There have been some important decisions at the Supreme Court about religious exemptions, both statutory and constitutional-based exemptions. And when we say “exemptions,” we mean exemptions from the general prohibition on discrimination based on religion. And, again, this issue goes back to the beginning of the faith-based initiative era and George W. Bush’s administration in which he amended a sort of famous regulation in federal contracting law to explicitly allow religious hiring in federal contracts.
And as you note, Amanda, we’ve been very consistent. We just spoke out at the time, saying, you know, you shouldn’t have to meet any religious test to qualify for a federally funded job. So for us it’s just ‑‑ it’s a matter of principle. Right? It’s not that we can answer every hypothetical out there or that you would have the same sense of justice in every single example. But as a general principle, you know, it makes sense.
If an entity gets a big federal contract and if that federal contractor only hires people of a particular religion, then it would seem to disqualify people of other religions from doing that work based upon their religion. And so that strikes us as wrong and not consistent with our general civil rights interests and in protecting generally employees from invidious discrimination based on race and sex and ethnicity and these other protected categories.
So there’s this rule that goes back to the Civil Rights Era of the ’60s. It comes out of an executive order of the Lyndon B. Johnson days, Executive Order 11246, and that’s the rule that broadly prohibits discrimination in federal contracting.
So it was that federal contracting rule that the Bush administration altered and that we spoke out against and that we continued to work in the Bush administration and then in the Obama administration and continuing to this day, to say, you know, we need to look at this. And we question this idea of whether you should retain a religious exemption when you are providing jobs with federal money.
AMANDA: And if our listeners, Holly, think that this is kind of arcane, that it doesn’t impact many people, something I learned in preparing for this episode is how many people are employed by federal contractors. It’s estimated that one in five American workers are employed by a federal contractor. So these rules impact millions of Americans, and again, it’s something that I think it’s important for our conversation to put a spotlight on where religious liberty concerns are implicated for many, many more people than, for instance, sometimes a Supreme Court case, you know, that impacts a much smaller subset of the ‑‑
HOLLY: Yes, yes.
AMANDA: — American population.
HOLLY: And I think just that fact is worth people understanding this area and hopefully understanding differences, legitimate differences that groups have, and you can say groups that are perhaps equally invested in religious liberty but see this issue very differently.
BJC opposed these changes during the Bush administration and continued to advocate for repealing them. We did that throughout the Obama administration, but were not successful. And then the Trump administration took it and went entirely beyond this to, again, amend this rule but did so in a way that was extremely aggressive. I mean, no interest whatsoever in the effect on employees, it seemed to us.
They changed who can qualify for an exemption from the prohibition on discrimination in the federal contracting area ‑‑
AMANDA: Or another way to put it is they changed who can qualify to discriminate on the basis of religion and hiring.
HOLLY: Exactly. So instead of it being religious entities, which I think it’s fair to say that’s what the Bush administration was interested in — they were interested in entities not losing their exemption because they got a federal contract. Okay. We can debate that, and I think reasonable people can disagree about that. I don’t think there was really anything to fix, even if you took a really harsh partisan view. I don’t think there was anything for the Trump administration to address in this area of the law.
Yet the Trump administration decided to greatly expand this religious exemption in federal contracting in two really problematic ways.
One, it made the exemption available regardless of what kind of entity you are. So generally where a religious entity that gets a federal contract might understandably be hiring people of that faith ‑‑ maybe they already were doing that, and they were the best one for the contract and so the exemption allows them to continue to hire the way they did, but the Trump administration says like, okay, anyone can have this religious exemption.
So it appeared to be a regulation that would expand a religious exemption beyond religious entities. And, of course, this has implications for other protected categories, and this is an area of the law that is hotly debated and disputed, because — as we noted — there are some changes in religious liberty law and some tension in employment law. And so this was a totally aggressive move by the Trump administration that would defer to religious arguments and that could very well harm the protection of employees who have the right not to be discriminated based upon all these other protected categories apart from religion.
Secondly, it made it more difficult for any employee to challenge the discrimination on these other grounds. So BJC, both individually and through our cooperation with the Coalition Against Religious Discrimination — which is a coalition that has been involved in this area of law back a couple of decades now — we filed comments opposing the change as undermining religious freedom and unnecessary.
And in doing so, I said that the proposed rule, the proposed old rule, ignores the vital distinctions between protecting religious liberty in the context of social services from private donations versus those in the government funding context, and worse, this issue that we were just talking about, the proposed rule expands the exemption beyond any foreseeable need, beyond funding social services by nonprofit religiously affiliated entities and offers the exemption from religious discrimination to any for-profit contractor.
So, we were very engaged in this issue, and we were very pleased when the Biden administration came out with its new rule, and we used this process of reading the rule, filing comments, and now we are at the end of that process with a final rule that reinstates the prior rule.
AMANDA: So, in essence, Holly, Biden’s new rule is just a return to the past. It’s returning to the status quo under both Obama and George W. Bush and rescinding this overbroad and harmful Trump regulation so that we have what we had before.
And in reaction to the rescission of the rule, we released a BJC statement in which you reiterated the bedrock principle that, “No one should be denied a federally funded job for being the wrong religion. The Biden administration is right to restore protections against religious discrimination for Americans who work for federal contractors. Returning to the rules as they existed under both President George W. Bush and President Barack Obama ensures that safeguards against discrimination intended to protect workers are not redefined into a broad exemption for for-profit businesses to reject qualified employees under the guise of religion.”
And you noted that the Department of Labor’s action “restores a workable standard” ‑‑ again, in our eyes, not an ideal standard but a workable one ‑‑ “that permits religious contractors to compete for federal contracts while ensuring American workers are protected from religious discrimination in their jobs.”
So we applauded this action and also recognized that there are a lot of safeguards to be maintained whenever we’re talking about federal funding that could lead to religious discrimination.
HOLLY: This final rule really does move us back to our expectation of prohibiting discrimination in federal contracting. And that has been such an important part of federal contracting generally since the 1960s. In fact, if you find yourself wanting to know more about this, you would look at the Department of Labor and specifically the Office of Federal Contract Compliance Programs. I mean, you have to have a whole government agency to ensure federal contracting.
And the number one law and policy, if you look at law and policy, the very first thing you see is a reference to this Executive Order 11246. And that is because it was an important development and one that we still should uphold to prohibit discrimination in federal contracting. So we appreciate that the Biden administration has returned us to a policy that is more in keeping with that longstanding principle of nondiscrimination in federal contracting.
That brings us to the close of this episode of Respecting Religion. Thanks for joining us for today’s conversation. For more details on what we discussed, including links to the articles and resources we mentioned, check out our show notes.
AMANDA: If you enjoyed today’s show, share this program with others on social media and tag us. We’re on Twitter, Instagram and YouTube @BJContheHill, and you can follow me on Twitter @AmandaTylerBJC.
HOLLY: Plus, as always, you can email both of us by writing to [email protected] We love hearing from you.
AMANDA: Thank you for supporting this program. You can visit our show notes for a link to donate to support the podcast. And for more episodes, you can see a full list of shows, including transcripts, by visiting RespectingReligion.org.
HOLLY: We encourage you to take a moment to find out more about BJC and how we’ve been working for faith freedom for all since 1936. Visit our website at BJCOnline.org for a look at what we do and some of our latest projects
AMANDA: Join us on Thursdays for new conversations Respecting Religion.