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 final rule sets forth changes to current regulations, which:
- 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 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 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 for domestic social service programs to provide written notice of certain protections to beneficiaries of the program. Specifically, and except where nature of the service provided or an exigent circumstance make it impracticable to do so, an organization that receives direct Federal financial assistance is required to give notice to beneficiaries that—
- 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;
- 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;
- The organization must separate in time or location any privately funded explicitly religious activities from activities supported by direct DHS financial assistance;
- 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
- 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 Federal financial assistance have until 90 days after publication in the Federal Register to satisfy the obligations in the new regulations. For more information, read the final rule.
In 2009, President Obama appointed a diverse Advisory Council for Faith-Based and Neighborhood Partnerships and asked them 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, Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations (which amended Executive Order 13279, Equal Protection of the Laws for Faith-Based and Community Organizations). Executive Order 13559 outlines criteria to guide Federal agencies in developing policies that will promote compliance with constitutional and other applicable legal principles and strengthen the capacity of faith-based and other neighborhood organizations to deliver services effectively to those in need.
In addition, Executive Order 13559 created the Interagency Working Group on Faith-Based and Other Neighborhood Partnerships to review and evaluate existing agency regulations, guidance documents, and policies for consistency with the Executive Order, and to submit a report to the President recommending changes necessary to ensure that relevant regulations and guidance documents are consistent with the fundamental principles set forth in the Executive Order.
Executive Order 13559 also required that, following receipt of the Working Group’s report, the Office of Management and Budget (OMB), in coordination with the U.S. Department of Justice, issue guidance to agencies on the implementation of the Executive Order. In August 2013, OMB issued that guidance and stated that participating agency heads must amend regulations and guidance to ensure that such regulations and guidance are consistent with the fundamental principles stated in the Executive Order. On August 6, 2015, the Agencies published proposed regulations consistent with this OMB guidance.
Following receipt and consideration of public comments, 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 are issuing these final regulations.