Nine federal departments have issued new regulations regulate social service subsidies for a range of programs, including drug rehabilitation; help penitentiary inmates reintegrate into their communities; shelter the homeless; helping needy families with dependent children; settling refugees; and providing vital assistance overseas in response to natural disasters, wars, famine and public health crises.
The regulations take effect April 4, 2024, and govern tens of billions of dollars in taxpayer funds. And they pose a threat to the many Christian ministries that have long provided these social services with the help of federal grants while preserving their religious identity and mission.
Rather than follow the equal treatment rule established in recent Supreme Court decisions, the Biden administration has opted for outdated and cumbersome alternatives that will drag the government into the work of religious nonprofits providing social services.
Since welfare reform passed in 1996 under the Clinton administration, faith-based organizations have been invited to compete on an equal footing for social service grants under the US-sponsored Charitable Choice Act. Former Senator John Ashcroft.
At the time, it seemed foolish to exclude federal grants from community aid organizations already established in disadvantaged neighborhoods through churches and stores, and whose aid workers were known to the poor and trusted by those they served. they were serving. These hope ministries had a holistic approach that proved particularly effective in dealing with certain afflictions.
In early 2001, then-President George W. Bush created the White House Office of Faith-Based and Community Initiatives to nurture this idea. The hope was that the agency would expand the number of social service programs requiring that all grant applicants be treated equally, including emphasizing no sanctions based on the applicant’s religion.
The application criteria were no longer Who are you? but rather, Can you do the job? And that task was to ensure the effective delivery of program services. Anything that could be communicated of a spiritual nature was not only of no concern to the government, but was also something in which officials were not to interfere.
The Obama administration continued the initiative largely unchanged, although under the modified name of the White House Office of Faith-Based and Neighborhood Partnerships. It’s a rare case of bipartisanship, and President Barack Obama has had to weather criticism from his party’s progressive left.
Over the past 20 years, major rulings have been issued by the United States Supreme Court reforming the law of church-state relations and making it easier for government aid to be granted to high-performing charities. , without penalty for their religion. As long as the goal of the aid was – from the government’s perspective – secular, such as education, health care or social services, then the government had to direct its money to the most competent candidates.
For example, the high court has long held that a state can choose to fund only its K-12 public schools, but that if a state also wants to help private schools, it must treat religious and secular private schools on an equal footing. Under the First Amendment, unbiased aid to K-12 religious schools is not only permitted by the Establishment Clause, but discrimination against these schools is now prohibited by the free exercise clause (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”).
Whether one considers this development good or bad, it is undeniable that there has been a radical change in the inclusion of K-12 religious schools in government largesse. This resulted in an increase in school choice in about half of the states.
These same principles of the First Amendment apply to social services. What became known as “faith-based equal treatment regulations” under the Bush administration were expected to remain consistent with Supreme Court developments.
These equal treatment regulations now cover nine federal departments, with major programs including the U.S. Departments of Health and Human Services, Housing and Urban Development, and Justice, as well as the U.S. Department of Justice. international Development.
Given the high court’s current trajectory allowing the government to pursue school choice, any necessary Biden administration updates to equal treatment regulations should have been straightforward. The simplest solution was for social service providers, secular and religious, to compete on a level playing field for grants. The government’s interest begins and ends with the actual provision of designated assistance to program beneficiaries, whether it be drug treatment, housing, job retraining, or reduction of domestic violence.
However, the regulations just released by the Biden administration are not only complicated, but deadly for faith-based social service providers.
First, the regulations make a distinction between whether the aid is paid directly to the provider or indirectly by means of a voucher given to the beneficiary to be passed on to the provider. In reality, the distinction makes no difference; the result is the same for purposes of the First Amendment.
This made a difference because the Supreme Court, beginning in the early 1980s, interpreted the Establishment Clause as allowing indirect aid to religious schools. It was appropriate for the court to accept the fiction that when a voucher or other form of indirect aid first went to parents – who chose the school for their child – the aid came from the parents and not of State. But everyone involved knew that it was actually government aid to private schools, including religious schools. This is why the public school lobby fought against school vouchers. Regardless, today’s courts have moved beyond this fiction, as have the rules on equal treatment.
Second, the Biden regulations require that any faith-based provider be monitored to ensure that no funding is used for “explicitly religious purposes.” This is also an artifact of court cases from 25 years ago, but is replaced by the current Free Exercise Clause principle that faith-based providers should be treated the same as secular providers . Specific surveillance of religious providers will entangle church and government in a way contrary to our heritage, which rightly separates the two.
More fundamentally, the rule prohibiting aid for explicitly religious purposes asks the wrong question. It is worth asking whether the provider, secular or religious, is doing the job of effectively delivering program services. If the answer is yes, the government has received the full value of its funding and its interest ends. As noted above, the Free Exercise Clause no longer permits discriminatory treatment of religious providers.
Third, if a beneficiary is religious, then the Biden regulations provide that a beneficiary may raise a religious objection to any part of the social service program and require an adjustment.
Consider the impossibility of operating a religious K-12 school that must allow each of its students choice in its educational program, where students can opt out of any part of the curriculum they find religiously objectionable. Meanwhile, under Biden’s rules, a faith-based drug rehab center must admit a beneficiary into its program — which integrates faith into the whole of life — and then adjust its program based on the beneficiary’s religious ideocracies. A provider cannot do this effectively, especially when what makes the program successful is the full participation of each beneficiary in an integrated program, including its spiritual aspects.
What the regulations should provide is a way for beneficiaries who have a religious objection to be sent to another program. In the rare case where there are no religiously non-objectionable programs for a recipient, the Establishment Clause requires the government to provide an equivalent service. The Establishment Clause imposes an obligation on the government because the First Amendment works against the government, not the faith-based provider.
The Trump administration could have been helpful in this area, but it failed. A faith-based White House office sets a vision for the initiative and provides direction to the broad and heavy executive branch. Trump created a White House partnership advisor, not an office; did not hold this position until two years into his administration; and then placed this person in the Public Liaison Office, the unit that coordinates with support coalitions and mobilizes voter support. In other words, Trump politicized the initiative.
From this low point, one would think that almost everything the Biden administration did would have been an improvement. Yet Biden stumbled over even this minor obstacle.
Carl H. Esbeck is the RB Price Distinguished Professor of Law at the University of Missouri. When John Ashcroft was Attorney General in the Bush Administration, Professor Esbeck led the task force to implement the faith-based initiative within the U.S. Department of Justice.
