On Friday, January 17, the Administration issued a proposed rule change on Ensuring Equal Treatment of Faith-Based Organizations. The Administration argues that the proposed rule will provide clarity about the rights and obligations of faith-based organizations that apply for or receive federal grants and funds. The proposed rule, which must be commented on by February 18, 2020, will eliminate specific requirements for faith-based organizations that the Administration says no longer reflect executive branch guidance or Supreme Court precedent.

The rule deals with HHS-funded programs and the White House Office of Faith-Based and Community Initiatives created by President George W Bush. The office underwent some changes in the Obama Administration, including a name change to Advisory Council for Faith-Based and Neighborhood Partnerships. The Obama Administration also added some provisions including requiring that any religious, social service provider refer potential beneficiaries to an alternative provider if the beneficiaries object to the first provider’s religious character; added a provision requiring that the faith-based provider gives notice of potential referral to potential beneficiaries; and added a provision that awards must be free of political interference and not be based on religious affiliation. Additional modifications were added by 2016.

This rule would delete the requirement that faith-based social service providers refer beneficiaries objecting to receiving services from them to an alternative provider and the requirement that faith-based organizations provide notices that are not required of secular organizations. The Administration says that the rule would make clear that a faith-based organization that participates in HHS-funded programs or services will retain its autonomy, right of expression, religious character, and independence from Federal, State, and local governments. It would prohibit guidance documents that HHS or any state or local government use in administering HHS-funded financial assistance cannot require faith-based organizations to provide assurances or notices that are not required of secular organizations and would clarify that faith-based organizations may apply for awards on the same basis as any other organization.

Ways and Means Committee Chair Richard Neal (D-MA) issued a statement that said in part,
“This latest proposal builds on the current Administration’s record of stripping protections from our country’s most vulnerable populations. Not only would this rule prioritize the beliefs of businesses and organizations over the rights of children and families, it could also infringe on the rights of states like Massachusetts and Illinois that worked hard to pass their own anti-discrimination laws.”

Neal was joined by Congressman Danny Davis (D-IL), who said, “As Chairman of the Subcommittee on Worker & Family Support at the Committee on Ways & Means, I am deeply concerned about the harm that this proposed rule poses to children and families. The federal government should be working to protect Americans’ rights, not encourage and support discrimination.”

The proposed rule was part of several statements and actions by the President on National Religious Freedom Day on January 16, 2020.