One reason there have been many religious liberty conflicts recently is the existence of more laws or state actions that could potentially interfere with religious practice.

Imagine if the Ingalls family living in Minnesota in the 1870s decided to follow a religious calling and build a storefront to give out food to the needy. There would have been essentially no legal barrier to doing that. This would not be as easy today: Zoning laws, building codes, employment laws, food safety regulations, etc., would all likely come into play now.

Of course, many of those regulations reflect common sense concerns like food safety and are not overly onerous. Thus, though they create some extra work, they are not significant barriers to religious exercise. Some are, however, as we have seen in recent Supreme Court decisions related to limits on worship services due to the pandemic.

Add to legal regulations the dramatically increased role of the government as a provider of social services, directly or indirectly. Where a 19th-century food distribution program might rely primarily on neighbors’ generosity, a modern soup kitchen may necessarily require government grants or other assistance to provide its services.

This raises the possibility of further conflicts, as regulations on use of funds or the disbursement of funding can single out and disadvantage faith-based services. The most recent examples are the Supreme Court decisions on scholarships and safety grants being used at religious schools.

These types of conflicts are relevant to understanding religious freedom concerns with the “Build Back Better” framework proposed by the Biden administration.

The framework lays out an expensive and ambitious plan to change the way the nation responds to climate change concerns; shift tax policies; increase taxpayer support for higher education; invest in infrastructure improvements; significantly increase the federal government’s role in childcare; and more.

The childcare portion, in particular, has implications for religious freedom.

The Bipartisan Policy Center found that of parents who used “center-based care” for their children, “over half, or 53%, of these families used one that was affiliated with a faith organization.”

Interestingly, higher-income families “tend to use faith-affiliated centers at much higher rates than other families,” which suggests that allowing families to use government assistance for these providers would make it more feasible for lower-income families. This is corroborated by the finding that “[w]hile a plurality of parents reported their ideal arrangement as providing care for their own child, faith-based child care centers are the second most ideal arrangement.”

This is why, as the Deseret News recently noted, “past policymakers have taken pains to ensure government initiatives aimed at expanding access to child care leave room for religious providers.”

The article cites Stanley Carlson-Thies, an expert at the Institutional Religious Freedom Alliance, who provided the example of the Child Care and Development Block Grant program that, since 1990, has explicitly provided “that families receiving associated funds can bring the money to religiously affiliated programs.” Carlson-Thies explains that this law “specifically protect[s] the religious identity, teaching, hiring and even faith-based admissions of the child care providers that get these federally funded certificates.”

By contrast, the Build Back Better proposal treats religious providers very differently. The Ethics and Religious Liberty Commission of the Southern Baptist Convention explains:

Under the reconciliation program, the child care funding isn’t added to the CCDBG program, but runs parallel to the program and includes new restrictions that would subject the certificates to the Head Start program’s nondiscrimination requirements. Sex discrimination would be prohibited. In addition, religious criteria for hiring and admissions would be prohibited. Some child care facilities operate in sex-segregated facilities, and this requirement would prohibit their participation.

 

The universal pre-K program would be subjected to the same religion restricting requirements as the child care funding but goes one step further. The program would use grants to fund the program, not issue certificates to parents, and would prohibit any religious teaching or activities in the federally supported pre-K programs.

Carlson-Thies even comments that “[t]he current language in the ‘Build Back Better’ bill seems to go out of its way to marginalize religious organizations.”

While the role of government and the complexity of our economy have increased, the need to ensure protection of religious freedom has not changed. These changes should not detract from our nation’s commitment to respect parents’ choices about religious education and honor the commitments of faith-based service providers.