Agencies Issue Final Rule Extending New Religious Liberty Protections to Beneficiaries

Today, nine agencies are publishing a final rule that will provide new religious liberty protections for beneficiaries of federally funded social service programs, while also adding new protections for the ability of religious providers to compete for government funds on the same basis as any other private organization. The regulations - which are being published after public notice and comment - formally implement Executive Order 13559, Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations.

In 2009, President Obama appointed a diverse Advisory Council for Faith-Based and Neighborhood Partnerships and asked Council members to make recommendations for strengthening the social service partnerships the Government forms with nongovernmental providers, including strengthening the constitutional and legal footing of these partnerships. While Council members differed on some important issues in this area, they were able to come to agreement on a number of significant recommendations. In response to the Advisory Council's recommendations, on November 17, 2010, President Obama issued Executive Order 13559.

On August 6, 2015, the following agencies published proposed regulations to implement EO 13559: the Department of Education, Department of Homeland Security, Department of Agriculture, Agency for International Development, Department of Housing and Urban Development, Department of Justice, Department of Labor, Department of Veterans Affairs, and Department of Health and Human Services.  Today, following receipt and consideration of public comments, these agencies are issuing final regulations.

The final rule sets forth changes to current regulations, including changes that:

• Require agencies to ensure that all decisions about Federal financial assistance are based solely on merit, without regard to an organization's religious affiliation or lack thereof, and free from political interference, or the appearance of such interference.
   
• Make clear that faith-based organizations are eligible to participate in federally funded social service programs on the same basis as any other private organization.
   
• Clarify what activities can and cannot be supported with direct Federal financial assistance by replacing use of the term "inherently religious activities" with the term "explicitly religious activities" and providing examples of such activities.
   
• Prohibit organizations that receive Federal financial assistance from discriminating against beneficiaries, including denying services or benefits, based on religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.
   
• Require faith-based organizations that receive direct Federal financial assistance for domestic social service programs to provide written notice of certain protections to beneficiaries of the program.  Specifically, an organization that receives direct Federal financial assistance is required to give notice to beneficiaries that-

1. The organization may not discriminate against a beneficiary based on religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice;
    
2. The organization may not require a beneficiary to attend or participate in any explicitly religious activities that are offered by the organization, and any participation by the beneficiaries in those activities must be purely voluntary;
    
3. The organization must separate in time or location any privately funded explicitly religious activities from activities supported by direct Federal financial assistance;
    
4. If a beneficiary or prospective beneficiary objects to the religious character of the organization, the organization will undertake reasonable efforts to identify and refer the beneficiary to an alternative provider to which the beneficiary does not object; and
    
5. A beneficiary or prospective beneficiary may report violations of these protections, including any denials of services or benefits, to the Federal agency or intermediary administering the program.

While these regulations become effective 30 days after publication in the Federal Register, recipients of Federal financial assistance have until 90 days after publication in the Federal Register to satisfy the new obligations in the final regulations.  For more information, click here.

These regulations build on widespread agreement that we can and should do more to protect the religious liberty of beneficiaries and provide greater clarity and transparency about applicable church-state rules. These reforms will strengthen partnerships that serve people in need, and we commend the agencies for working together to issue these final regulations.

Melissa Rogers is Special Assistant to the President and Executive Director of White House Faith-Based Neighborhood Partnerships.