Nine federal departments have issued new regulations governing social service grants for a range 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 many Christian ministries that have long provided these social services with the help 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than follow the rule of equal treatment secured in recent Supreme Court decisions, the Biden administration opted for outdated and unwieldy alternatives that will entangle the government in the work of religious nonprofits offering social services.
Since the 1996 welfare reform enacted in 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 foolish for federal grants to exclude community-serving organizations that were already embedded in depressed neighborhoods via churches and storefront outlets, and whose mercy workers 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 idea. The hope was that the office would expand on the number of social service programs that required all grant applicants to be treated the same, emphasizing in particular that there be no penalties on account of an applicant’s religious character.
The criteria for applicants was no longer Who are you? but rather, Can you do the job? And that job was the effective delivery of the program’s services. Whatever else that might be communicated of a spiritual nature was not only not the concern of the government but was something with which officials were not to become 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 withstand 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 purpose of the aid was—from the government’s point of view—secular, such as education, health care, or social services, then the government was to steer its money to the most capable applicants.
For example, the high court has long said that a state may choose to fund only its K–12 public schools, but if a state wants to also help private schools, it must treat religious and secular private schools equally. Under the First Amendment, evenhanded aid to K–12 religious schools is not 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 establishment of religion, or prohibiting the free exercise thereof”).
Whether one deems this development good or bad, there is no denying that there has been a sea change in the inclusion of religious 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 known as the faith-based “equal-treatment regulations” during the Bush administration were to be kept in line with developments at the Supreme Court.
These equal-treatment regulations now span nine federal departments, with big-money programs at the likes of the US Departments of Health and Human Services, Housing and Urban Development, and Justice, as well as the US Agency for International Development.
Given the current trajectory of the high court permitting government to pursue school choice, any needed updating by the Biden administration of the equal-treatment regulations should have been straightforward. The simple path was for social service providers, secular and religious, to compete equally for grant funding. The government’s interest begins and ends with the effective delivery of the designated aid to the program beneficiaries, be it drug rehabilitation, housing, job retraining, or reducing domestic violence.
The regulations just released by the Biden administration, however, are not only not simple but soul-killing to faith-based social service providers.
First, the regulations distinguish between whether the aid is delivered directly to the provider or delivered indirectly by way of a voucher given to the beneficiary to be passed on to the provider. In actuality, the distinction makes no difference; the result is the same for purposes of the First Amendment.
It once made a difference because the Supreme Court, starting in the early 1980s, interpreted the establishment clause to allow indirect aid to religious schools. It was expedient for the court to entertain the fiction that when a voucher or other form of indirect aid first went to parents—who selected the school for their child—the aid was from the parent, not the state. But all concerned knew this was really government aid to private 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 ensure that none 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 the same as secular providers. The specified monitoring of religious providers will entangle church and government in ways inimical to our heritage, which rightly separates the two.
More fundamentally, the rule prohibiting aid for explicitly religious purposes is asking the wrong question. The proper inquiry is whether the provider, secular or religious, is doing the job of effectively delivering the program’s services. If the answer is in the affirmative, the government has received full value for its funding and its interest comes to an end. As noted above, the free exercise clause no longer allows discriminatory treatment of religious providers.
Third, if a grantee is faith-based, then the Biden regulations provide that a beneficiary may raise a religious objection to any part of the social service program and demand an adjustment.
Consider the impossibility of operating a religious K–12 school that must allow each of its students to pick and choose from its educational program, where students can opt out from any 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 whole of life—and then adjust its program depending on the religious ideocracies of the beneficiary. A provider can’t do that efficiently, especially when what makes the program successful is each beneficiary’s full participation in an integrated program, including its spiritual aspects.
What the regulations ought to provide is a way for beneficiaries who have a religious objection to be sent to a different program. In the rare instance where there are no non-religiously objectionable programs for a beneficiary, then the establishment clause requires the government to provide an equivalent service. The establishment clause places the duty on the government because the First Amendment runs against the government, not the faith-based provider.
The Trump administration could 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 set up a White House partnership advisor, not an office; did not fill that position until two years into his administration; and then placed that person in 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 just about 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 at the University of Missouri. When John Ashcroft was attorney general in the Bush administration, Professor Esbeck headed the task force to implement the faith-based initiative at the US Department of Justice.
