Nine federal departments have issued latest regulations governing social service grants for a variety of programs including drug rehabilitation; assisting penitentiary inmates reentering their communities; sheltering the homeless; aiding needy families with dependent children; settling refugees; and providing overseas lifesaving aid in response to natural disasters, war, famine, and public health crises.
The regulations take effect on April 4, 2024, governing tens of billions of dollars in taxpayer funds. And they represent a threat to the various Christian ministries which have long provided these social services with the assistance of federal grants while maintaining their religious identity and mission.
Rather than follow the rule of equal treatment secured in recent Supreme Court decisions, the Biden administration opted for outdated and unwieldy alternatives that can entangle the federal government within the work of spiritual nonprofits offering social services.
Since the 1996 welfare reform enacted within the Clinton administration, faith-based organizations have been invited to compete on an equal basis for social service grants under the “Charitable Choice” act sponsored by former senator John Ashcroft.
At the time, it seemed silly for federal grants to exclude community-serving organizations that were already embedded in depressed neighborhoods via churches and storefront outlets, and whose mercy staff were known to the poor and trusted by those they were serving. These ministries of hope had a holistic approach that proved especially effective for addressing certain afflictions.
Early in 2001, then-president George W. Bush created the White House Office of Faith-Based and Community Initiatives to nurture the concept. The hope was that the office would expand on the variety of social service programs that required all grant applicants to be treated the identical, emphasizing specifically that there be no penalties on account of an applicant’s religious character.
The criteria for applicants was not Who are you? but quite, Can you do the job? And that job was the effective delivery of this system’s services. Whatever else that could be communicated of a spiritual nature was not only not the priority of the federal government but was something with which officials weren’t to turn into entangled.
The Obama administration continued the initiative largely unchanged, albeit under the altered moniker of the White House Office of Faith-Based and Neighborhood Partnerships. This was a rare instance of bipartisanship, and President Barack Obama had to resist some heat from his party’s progressive left.
Over the last 20 years, there have been major rulings by the US Supreme Court reforming the law of church-state relations and making it easier to direct government aid to the best-performing charities, without penalty for being religious. So long as the aim of the help was—from the federal government’s viewpoint—secular, corresponding to education, health care, or social services, then the federal government was to steer its money to essentially the most capable applicants.
For example, the high court has long said that a state may decide to fund only its K–12 public schools, but when a state desires to also help private schools, it must treat religious and secular private schools equally. Under the First Amendement, evenhanded aid to K–12 religious schools isn’t only permitted by the establishment clause, but to discriminate against such schools is now prohibited by the free exercise clause (“Congress shall make no law respecting an institution of faith, or prohibiting the free exercise thereof”).
Whether one deems this development good or bad, there isn’t a denying that there was a sea change within the inclusion of spiritual K–12 schools in government largess. This has spawned a school-choice surge in about half the states.
Those same First Amendment principles apply to social services. What became often known as the faith-based “equal-treatment regulations” in the course of the Bush administration were to be kept consistent with developments on the Supreme Court.
These equal-treatment regulations now span nine federal departments, with big-money programs on the likes of the US Departments of Health and Human Services, Housing and Urban Development, and Justice, in addition to the US Agency for International Development.
Given the present trajectory of the high court permitting government to pursue school alternative, any needed updating by the Biden administration of the equal-treatment regulations must have been straightforward. The easy path was for social service providers, secular and non secular, to compete equally for grant funding. The government’s interest begins and ends with the effective delivery of the designated aid to this system beneficiaries, be it drug rehabilitation, housing, job retraining, or reducing domestic violence.
The regulations just released by the Biden administration, nonetheless, usually are not only not easy but soul-killing to faith-based social service providers.
First, the regulations distinguish between whether the help is delivered on to the provider or delivered not directly by the use of a voucher given to the beneficiary to be passed on to the provider. In actuality, the excellence makes no difference; the result is identical for purposes of the First Amendment.
It once made a difference since the Supreme Court, starting within the early Nineteen Eighties, interpreted the establishment clause to permit indirect aid to non secular schools. It was expedient for the court to entertain the fiction that when a voucher or other type of indirect aid first went to oldsters—who chosen the college for his or her child—the help was from the parent, not the state. But all concerned knew this was really government aid to personal schools, including religious schools. That’s why the public-school lobby fought vouchers. In any event, today’s court has moved beyond this fiction, and so must the equal-treatment regulations.
Second, the Biden regulations require that any faith-based provider be monitored to be certain that not one of the funding is used for “explicitly religious purposes.” This too is an artifact of the court’s cases from 25 years ago but is superseded by today’s free-exercise clause principle that faith-based providers be treated similar to secular providers. The specified monitoring of spiritual providers will entangle church and government in ways inimical to our heritage, which rightly separates the 2.
More fundamentally, the rule prohibiting aid for explicitly religious purposes is asking the mistaken query. The proper inquiry is whether or not the provider, secular or religious, is doing the job of effectively delivering this system’s services. If the reply is within the affirmative, the federal government has received full value for its funding and its interest involves an end. As noted above, the free exercise clause not allows discriminatory treatment of spiritual providers.
Third, if a grantee is faith-based, then the Biden regulations provide that a beneficiary may raise a spiritual objection to any a part of the social service program and demand an adjustment.
Consider the impossibility of operating a spiritual K–12 school that must allow each of its students to choose and pick from its educational program, where students can opt out from any a part of the curriculum that they find religiously objectionable. In parallel fashion, under the Biden rules, a faith-based drug rehabilitation center must admit a beneficiary to its program—which integrates faith with the entire of life—after which adjust its program depending on the ideocracies of the beneficiary. A provider can’t do this efficiently, especially when what makes this system successful is each beneficiary’s full participation in an integrated program, including its spiritual points.
What the regulations ought to offer is a way for beneficiaries who’ve a spiritual objection to be sent to a special program. In the rare instance where there aren’t any non-religiously objectionable programs for a beneficiary, then the establishment clause requires the federal government to offer an equivalent service. The establishment clause places the duty on the federal government since the First Amendment runs against the federal government, not the faith-based provider.
The Trump administration might have been helpful here but failed. A White House Faith-Based Office sets a vision for the initiative and provides focus for the vast and unwieldy executive branch. Trump arrange a White House partnership advisor, not an office; didn’t fill that position until two years into his administration; after which placed that person within the Office of Public Liaison, the unit that coordinates with supportive coalitions and mobilizes voter support. In other words, Trump politicized the initiative.
From that low point, one would think absolutely anything the Biden administration did would have been an improvement. Yet Biden stumbled over even that low hurdle.
Carl H. Esbeck is the R.B. Price Professor of Law Emeritus on the University of Missouri. When John Ashcroft was attorney general within the Bush administration, Professor Esbeck headed the duty force to implement the faith-based initiative on the US Department of Justice.
