Lessons for religious freedom in last-minute rulemaking

Written by William C. Duncan

December 18, 2020

On Monday, December 16, the Deseret News reported that the lame duck Trump administration published a new rule on how religiously motivated nonprofits can offer their services when they receive federal funds. It is not uncommon for presidents to try to quickly get some things done before they leave office. This particular action, though, highlights some important realities.

2020 rule

The proposed rule is long and detailed but some of the major highlights are:

  • A removal of the requirement from a 2010 executive order that “any religious social service provider refer potential beneficiaries to an alternative provider if the beneficiaries objected to the first provider’s religious character” and that the “faith-based provider give notice of potential referral to potential beneficiaries.”
  • Clarification that “a faith-based organization may apply for awards on the same basis as any other organization.”
  • “Clarif[ication] that faith-based organizations participating in Agency-funded programs shall retain their autonomy, right of expression, religious character, and independence.”
  • Providing that “any restrictions on the use of grant funds shall apply equally to faith-based and secular organizations.”

Religious social services

The rule reflects the reality that religiously motivated organizations play a significant role in providing critical social services. For example, a study by Brian Grim and Melissa Grim found that local “congregations spent an estimated $9.2 billion on social programs in 2012.” Another study gave a conservative estimate of the social services provided by the faith-based sector as “$50 billion per annum.”

Public opinion

The rule also tracks, in some ways, recent public opinion on government support for faith-based social services. The Becket Fund for Religious Liberty asked a nationally representative sample:

Thinking about the government funding of religious organizations that provide services to the community, please review the two hypothetical opinions below and indicate which one comes closest to your own.

 

Smith believes religious organizations that provide services to help in the community (e.g., soup kitchens, homeless shelters, etc.) should be just as eligible to receive government funds as non-religious organizations that provide the same kind of services in the community.

 

Jones believes religious organizations that provide services to help in the community should not be eligible to receive government funds because they don’t pay taxes.

Of the nearly two-thirds of respondents who reported views like Smith in the hypothetical, 28% said that this was exactly their view and 37% that it was somewhat their view. By comparison, 13% said Jones’ position was exactly theirs and 22% that it was somewhat theirs.

Fragility of executive orders

The Deseret News article raises another important consideration. One of the opponents of the new rule change is quoted as saying that the current proposed rule is unnecessary because President-elect Joe Biden will just change the rule again when he takes office.

Whether that is an accurate prediction or not, it reflects the reality of administrative rulemaking, which can change from administration to administration. In fact, the long preface to the new proposed rules discusses the many adjustments to the rules governing participation of faith-based organizations in government social service efforts from the George W. Bush administration to the Barack Obama administration to the Donald Trump administration. Some of the changes have been minor and some quite significant.

Taken together, these implications suggest that there is a need for guidelines that allow participation of faith-based groups in providing social services. The American public would likely support guidelines that treat religiously motivated groups the same as other service providers that receive government grants.

The source of the guidelines, though, should probably not be executive government agencies that vacillate with partisan shifts. Instead of last-minute, lame duck changes to regulations, the U.S. should have a supportive and stable approach provided by Congress.

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