An Orthodox Jew is placed in a government-subsidized job program that meets in a church. His religious beliefs bar him from entering a church. Will reasonable efforts be made to refer him to an alternate provider?
A Catholic victim of human trafficking is cared for by a federally funded evangelical nonprofit. The nonprofit also organizes Bible study groups and invites her to attend. She’s afraid if she refuses to attend a Bible study, she could lose her government benefits. Will she be told that she doesn’t need to participate in the Bible study to receive federally funded services?
A woman in a government-backed pregnancy prevention program is bothered by the fact that the program leader proselytizes. Will she learn that providers must not proselytize within a government grant program? Will she know how to report any violations of these rules?
On the recommendation of religious and community leaders from across the political spectrum, the Obama administration’s answer to these questions was a clear: “Yes.” I saw that firsthand as executive director of the White House Office of Faith-Based and Neighborhood Partnerships, the arm of the White House that focused on the government’s partnerships with faith-based and community groups.
President Donald Trump changed that earlier this month when he signed an executive order striking religious liberty protections for Americans who get government-subsidized social services. While Trump said he took these actions in the name of religious liberty, he actually dealt religious freedom a blow with his new White House Faith and Opportunity Initiative. He also damaged efforts to find common ground on church-state issues and undermined support for the many partnerships the government has with faith-based entities.
The religious liberty protections that were put in place during the Obama administration began with a promise then-Sen. Barack Obama made on the campaign trail in 2008. If elected, Obama said, he would keep President George W. Bush’s White House Office of Faith-Based and Community Initiatives while putting his own mark on that office. Among other innovations, he promised to establish an advisory council, a diverse group of religious and community leaders, and ask them to make recommendations on how to strengthen these partnerships.
Within weeks of taking office, Obama signed an executive order opening the White House Office of Faith-Based and Neighborhood Partnerships and creating an advisory council. He named leaders to the council who were diverse in many ways, including in their politics, ideology and theology.
Smaller working groups within the council captured even more diversity. The working group charged with examining church-state issues included a former staff member of Bush’s Office of Faith-Based and Community Initiatives and the head of Americans United for Separation of Church and State, as well as leaders falling somewhere in between, including me.
The council could not agree on some important church-state issues, but members did agree that more could and should be done to protect the religious liberty of people who get government-subsidized social services.
If beneficiaries of federally funded social services object to the religious character of their assigned provider, they should be referred to an alternative service provider of comparable value and accessibility. Council members recommended this “alternative provider” requirement be applied across federal grant programs. Council members also agreed that such beneficiaries should not be discriminated against because of their religious beliefs or lack thereof, that any privately funded religious activities must be held separately from activities funded by government grants and that beneficiaries should not be required to participate in religious activities like worship or Bible study or discriminated against for refusing to do so.
The council also recommended that beneficiaries receive a written notice to ensure they understood these protections. In November 2010, Obama signed these recommendations into law via Executive Order 13559.
After a public notice and comment process, nine federal agencies issued final rules implementing this executive order, a process I coordinated when I served at the White House.
Under the rules, religious organizations that receive direct federal aid for domestic programs are required to make reasonable efforts to refer beneficiaries to alternative providers if beneficiaries object to an organization’s religious character. Such religious providers are also required to give beneficiaries written notice of these and other protections.
The incorporation of these provisions in federal regulations helped tamp down the controversy over partnerships between the government and faith-based organizations. To be sure, many progressives still opposed certain rules George W. Bush had put in place, but these new rules ameliorated their concerns, while also drawing the support of conservatives.
The order Trump signed in early May eliminates the alternative-provider requirements. Trump’s order also strikes the requirement that beneficiaries receive written notice of protections for their religious liberty.
The White House offered no explanation for its actions, but two justifications were described by others.
First, requiring religious providers to make reasonable efforts to identify alternative providers and offer referrals simply is not a good use of these providers’ time, suggested a leader of Agudath Israel of America, an Orthodox Jewish group quoted in a recent JTA report. If any referrals are warranted, governmental bodies should do it.
Religious providers have long had to make referrals to alternative providers under a few federally funded programs, with no reported problems. Deciding to place this responsibility on government instead could prove to be a respectable choice, but striking these religious liberty protections is not.
The second justification offered for rescinding these protections was that some antiabortion religious providers fear that they would have to make referrals for prenatal services to providers that also offer abortions, Stanley Carlson-Thies, a political scientist who worked with the faith-based offices of Bush and Obama, told the Deseret News.
Available data suggests that referrals in general are rarely requested, and this specific kind of referral request seems even more unlikely. In such a case, however, the religious provider could request and receive an accommodation under the federal Religious Freedom Restoration Act, one that would honor the objection and find another way to make the referral.
What the federal government should not do, however, is remove protections for the religious liberties of countless Americans (in this case, social service beneficiaries) because of the slight possibility that a religious organization might one day have to successfully raise an objection to a referral.
Removing religious liberty protections in the name of religious freedom taints the cause. Honoring freedom for faith-based providers, while taking it away from people receiving services, is wrong. Breaking the long-standing pattern of respect for common-ground consultations is shortsighted. Undermining bipartisan support for effective partnerships that serve people in need is inexcusable. One way or another, those who value religious liberty and social service partnerships must fix these mistakes.
Melissa Rogers is an attorney who directed the White House Office of Faith-Based and Neighborhood Partnerships from 2013-2017 and served as the chair of the Advisory Council for Faith-Based and Neighborhood Partnerships from 2009-2010.