Biden must repeal Trump’s new faith-based rules that give license to discriminate

The Freedom From Religion Foundation is denouncing a just-announced massive final rule change that grants faith-based federal social services contractors license to discriminate against beneficiaries on religious grounds.

The 381-page final rule is categorically harmful, the state/church watchdog cautions. The incoming Biden administration should rescind it, in its entirety, on day one, as FFRF indicated in its official comments on the new regulations.

The modifications remove minimal Obama-era protections for beneficiaries of government services, potentially forcing beneficiaries to enter religious environments or endure religious rituals in order to receive government services.

Although the proposals received more than 95,000 comments, with many thousands pointing out serious problems in over 39 separate areas, the agencies made no substantive changes. Instead, the almost 400-page “final rule” showcases the outgoing administration’s absolute disdain for civil rights protections for federal social services recipients.

In a cruel and especially ironic twist, this assault on true religious freedom will take effect on Religious Freedom Day: Jan. 16, 2021, the anniversary of Thomas Jefferson’s Virginia Statute for Religious Freedom, which was a landmark statute codifying the principles of freedom of conscience and separation between religion and government.

License to discriminate
The modifications allow faith-based contractors offering government-funded services to discriminate in various ways, including on the basis of sexual orientation or gender identity, so long as they claim the discrimination is required by “sincerely held religious beliefs.” The Religious Freedom Restoration Act is cited as a partial justification.

The governmental agencies dishonestly claim: “There is no indication that any aspect of this final rule will lead to the harms asserted by commenters, including discrimination and denial of service.” The changes repeatedly state that government-funded religious discrimination is not permitted, but this is misleading. While faith-based organizations are not allowed to discriminate against beneficiaries based on the beneficiary’s religion per se, they can discriminate on other basis — for instance against LGBTQ people — if they say their religion requires it. In other words, the rule allows federally funded discrimination based on the providers’ religion, not on the basis of the recipients’ religion.

Removal of notice and referral requirements
The revisions remove Obama-era protections that required faith-based organizations to disclose their religious affiliation and to offer referrals to comparable providers if a beneficiary preferred not to work with that particular religious organization. The agencies claim that there is “no indication that any beneficiary sought such a referral.” This must be willful ignorance. FFRF has helped complainants who were upset that a government-funded program was only offered to them by a religious provider, advising those organizations of their obligation to help such people find secular providers. That protection is now gone.

The Trump administration even dismissed concerns that, for instance, an unmarried pregnant woman might object to being forced to seek federally funded services from a church that condemns premarital sex. There’s no need now to require that church to refer her to a secular alternative not having a religious bias against her, the government reasons, because “it is not clear that a beneficiary would feel more comfortable” asking the provider for a referral rather than “receiving the service from the religious provider or finding an alternative provider through independent means.” Plainly, the Trump administration does not understand or sympathize with those who object to receiving government-funded services from specific religious providers.

The government, in responding to such objections, notes that secular providers have not required to provide any notice of their secular character and have had no referral requirement for beneficiaries who objected to their secular character. This is sheer nonsense — a desperate attempt to find religious persecution when there is none.

Requiring secular providers to give notice of their “secular character” is like requiring trucks to provide notice that they do not have hazardous waste just because trucks that do have hazardous waste have to give notice. We don’t need to label religion because it’s toxic — though it certainly can be — but because when it comes to providing social services with government money, secular options are the norm. Being a secular provider means providing services to all, on an equal basis, as prescribed by law. Because some religious providers wish to claim an exemption from those generally applicable regulations, informed consent should be required.

A recurring line from the government is that “no law mandates” further beneficiary protections. Translation: The outgoing administration is committed to giving beneficiaries of government-funded services the bare minimum protections required by the law. By contrast, the revisions give religious organizations receiving federal taxpayer funds extraordinary privileges, ranging from the right to discriminate to the right to require beneficiaries to participate in religious exercises when possible.

Expansion of the “indirect aid” loophole
The modifications also expand an already substantial loophole that allows religious organizations to advance religion while offering government-funded services. Typically, the restrictions on religious use of government funds only apply to “direct” government aid. If the funds are received through a voucher-like scheme, they are considered “indirect” government aid.

The changes expand the definition of “indirect” aid. The Obama-era rules ensured a true choice because religious organizations could only qualify for the “indirect aid” loophole if at least one secular provider was also available. The new rules remove this requirement to offer choice and a secular option. This means that a beneficiary might have a “voucher” for a government service that only a religious provider could offer.

Conclusion
The Freedom From Religion Foundation has worked to mobilize its more than 33,000 members to fight against regulations like this, including a similar rule just last week, aiming to give favored treatment to religious organizations at the expense of nonreligious Americans. Such rules erode the wall between state and church that has protected religious liberty in the United States since its foundation. They also further a troubling, steady march toward Christian Nationalism in our government.

“Rather than legalizing invidious discrimination,” says Dan Barker, FFRF co-president, “federal agencies should take steps to ensure access to secular federal services with no religious strings attached.”

The Freedom From Religion Foundation, based in Madison, Wis., a 501(c)(3) nonprofit educational charity, is the nation's largest association of freethinkers (atheists, agnostics), and has been working since 1978 to keep religion and government separate.

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