DHS Issues Final Rule to Protect Religious Liberties of Social Program Beneficiaries

By Megan Mack, Officer for Civil Rights and Civil Liberties, and Rev. David L. Myers, Director of the DHS Center for Faith-based & Neighborhood Partnerships

Today the U.S. Department of Homeland Security (DHS), along with eight other federal agencies, published 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 Department is proud to now have a final rule in place that provides clear guidance to the organizations that participate in our social service programs, and protects beneficiaries of these vital programs: 

• USCIS Citizenship and Integration Program Grant: helps prepare individuals for naturalization exams and integrating into communities.

• FEMA’s Emergency Food and Shelter Program: funds the provision of food and shelter to individuals and families who have economic emergencies.

• FEMA Crisis Counseling: funded through the Stafford Act’s Individual Assistance Program, this program assists individuals recovering from the effects of disasters through the provision of emotional support, coping strategies, and stress reduction.  

• FEMA Disaster Case Management: funded through the Stafford Act’s Individual Assistance Program, this program provides funding and technical assistance to ensure delivery of services to disaster survivors to help them develop and carry out Disaster Recovery Plans. 

For instance, if a faith-based organization receives funding from the Federal Emergency Management Agency and provides disaster case management to a beneficiary, beneficiaries must be notified in writing that they: cannot be discriminated against based on religion; cannot be required to attend or participate in any privately funded religious activities that are offered separate from this federally funded program; and may request an alternative provider if the beneficiary objects to the religious character of the organization.  At the same time, the regulations require that all decisions about DHS’s financial assistance be based solely on merit, without regard to an organization’s religious affiliation or lack thereof.  The regulations—which are being published after public notice and comment—formally implement Executive Order 13559, Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations (which amends Executive Order 13279).
 
“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,” said Melissa Rogers, Executive Director of the White House Office of Faith-based and Neighborhood Partnerships.  “These reforms will strengthen partnerships that serve people in need, and we commend the agencies for working together to issue these final regulations.”  
 
The final regulations: 

• Require DHS 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 DHS’s social service programs on the same basis as any other private organization.
   
• Clarify what activities can and cannot be supported with direct DHS 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 DHS financial assistance for domestic social service programs 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 DHS financial assistance to provide written notice of certain protections to beneficiaries of the program.

 Specifically, an organization that receives direct DHS financial assistance is required (unless the service provided or an exigent circumstance makes it impracticable) 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 DHS 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 DHS or an intermediary administering the program.

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