Trump Administration’s Religious Freedom Claims Require a Closer Look
The Trump administration is promoting new proposed rules on social service partnerships with faith-based organizations under the banner of religious freedom. A closer look, however, reveals that the proposals would actually eliminate certain religious liberty protections for social service beneficiaries, and that none of the Trump administration’s justifications for its actions holds water.
To appreciate this matter, a bit of background is needed. During the 1990s, Congress began considering legislation that would codify a set of rules governing federally funded partnerships between the government and religious organizations to serve people in need. The legislation included protections for faith-based providers of such services. Some of those protections are noncontroversial. As my friend Professor John DiIulio, the first director of President George W. Bush’s White House Office of Faith-based and Community Initiatives, says: the St. Vincent de Paul Shelter shouldn’t have to change its name to the Mr. Vincent de Paul Shelter in order to receive federal funding for secular social services. Other provisions continue to be controversial, including ones allowing faith-based organizations to deny workers taxpayer-funded positions for religious reasons.
However people come out on that issue, most agree that beneficiaries should not be denied federally funded services because of their religion or beliefs. Bipartisan support also grew around another idea – that beneficiaries should be able to access an alternative provider if they object to the religious character of their initial provider, a protection often called the “alternative provider requirement.” If an individual believes, for example, that it would violate his or her faith to enter a house of worship affiliated with another religion, the beneficiary should be able to get benefits elsewhere. Those of us who belong to religious communities that are or were minorities in this country tend to be especially sensitive to such concerns.
Likewise, there has been widespread agreement that beneficiaries should be notified about such protections. After all, no reasonable person would assume that vulnerable beneficiaries would simply know about these protections without being told. From 1993-2000, leaders came together across party lines to enact several federal statutes that added these beneficiary notification and alternative provider requirements to partnerships formed under several federal social service programs.
In 2009, President Obama appointed leaders with differing views on some of the disputed issues to his inaugural Advisory Council on Faith-based and Neighborhood Partnerships. A Council task force noted: “There is clear precedent and consensus for the vigorous protection of the religious liberties of beneficiaries of federally funded programs.” Task force members also emphasized another crucial fact: “One cannot assume that those who are seeking aid through the array of federally funded social welfare programs would be aware of their religious liberty rights.” The Advisory Council, therefore, recommended that the beneficiary notification and alternative provider requirements be applied to partnerships formed under all federal social service programs, when those partnerships were supported by direct aid like grants or contracts. President Obama signed an executive order embracing these and other recommendations, and an array of federal agencies issued regulations implementing these requirements in 2016. Thus, while there continue to be real and important differences in this area, these religious liberty protections for social service beneficiaries have long been an area of common ground.
Now, however, the Trump administration wants to eliminate these protections. Why?
The Trump administration claims current regulations must be eliminated because they violate the religious liberty of faith-based organizations. Under the regulations, federally funded religious organizations are required to make reasonable efforts to refer beneficiaries to alternative providers when beneficiaries object to the organization’s religious character and to provide beneficiaries with written notice about this and other religious freedom protections. The regulations do not deny religious organizations the ability to compete for government aid or to participate fully in federally funded programs. They simply require religious organizations that choose to accept federal funding to take steps that even the administration recognizes to be de minimis. These regulatory requirements do not violate the First Amendment or the federal Religious Freedom Restoration Act.
Moreover, the Trump administration is entirely free to assign the relevant responsibilities differently. It could require the government rather than providers, for example, to notify beneficiaries about protections for their religious liberty and to identify alternative providers for objecting beneficiaries. The administration could also allow beneficiaries who are assigned to secular providers to request religious providers instead. In its notices of proposed rulemaking, however, the Trump administration barely mentions any alternative approaches, and it completely fails to give them serious consideration. The Trump administration’s proposal simply says beneficiaries will no longer be notified about protections for their religious liberty and that no one will be required to assist beneficiaries in identifying and accessing alternative providers if they object to their initial providers.
It’s difficult to overstate the shortsightedness and hard-heartedness of this approach. Imagine a survivor of human trafficking who may be unfamiliar with a city or state, may not speak English, and who may not have a car, a personal computer, or reliable access to the Internet having to search for an alternative provider while holding down one or more jobs and caring for young children. During COVID-19, beneficiaries will face even more challenges as they seek assistance. One predictable and awful result may be that beneficiaries simply go without the services they need, which would be a loss both for beneficiaries and society as a whole.
The Trump administration attempts to justify its plans by saying requests for alternative providers are rarely made. But the beneficiary notification and alternative provider requirements are matters of principle and requests are important when made. The fact that such requests are infrequent does not negate the need to inform beneficiaries about their ability to make one, and it does not negate the need to assist beneficiaries in accessing an alternative provider when they ask for one. And it’s worth noting that the rarity of such requests underscores the point that responding to them isn’t a substantial burden.
Sadly, the administration’s proposals also reveal that it values the religious liberty of faith-based providers far more than the religious freedom of social service beneficiaries. Agencies recognize that it is not enough, for example, for there to be protections for religious providers; agencies need to notify providers of such protections. Indeed, in their proposed rules, the agencies pledge to add new notifications for religious providers. Yet, in these same proposals, the administration also pledged to eliminate notification requirements for beneficiaries. This isn’t religious freedom – it’s religious favoritism.
Whatever the ultimate outcome in this case, Americans should carefully scrutinize the Trump administration’s claims about religious freedom. It’s an exercise that’s necessary and clarifying.
Melissa Rogers is author of Faith in American Public Life (Baylor University Press 2019). A Baptist and a lawyer, Rogers served as special assistant to President Barack Obama and as executive director of the White House Office of Faith-based and Neighborhood Partnerships from 2013-2017. You can read her additional comments on the Trump administration’s notices of proposed rulemaking on these issues here and here.