March 2020 Church & State - March 2020

Reckless Rules: New Trump Administration ‘Faith-Based’ Regulations Promote Discrimination And Threaten Rights, Americans United Says

  Liz Hayes

When it comes to private social service agencies that seek taxpayer money, the government’s first priority is supposed to be the best interests of the vulnerable people who need those services.

With a series of regulations pro­posed in January and February, the Trump administration is pro­posing to flip that bedrock principle on its head and instead prioritize the religious beliefs of faith-based organi­zations, to the detriment of the people they serve.

On Jan. 16 – National Religious Free­dom Day, no less – eight federal agencies issued proposed regulations that would roll back religious free­dom protections for people who rely on services provided by faith-based social-service agencies that receive billions in taxpayer dollars. Similar regulations from a ninth agency were released on Feb. 13.

“These rules undermine the civil rights and religious freedom of mil­lions of our most vulnerable Am­eri­cans who rely on social services – with particularly dire consequences for LGBTQ people and religious minorities,” said AU President and CEO Rachel Laser in a statement that was reported by the Associated Press, ABC News, Fox News and others.

“No one should be denied the help they need because their government-funded provider condemns who they are, who they love, or what they be­lieve,” Laser added.

One of the protections the Trump regulations would eliminate is the re­quirement that social service agen­cies take reasonable steps to refer people to alternative providers if re­quested. This protection ensures that people have other options if a faith-based provider signals religious beliefs that make the beneficiary uncomfortable or are offensive to the beneficiary. Eliminating this protection means that people may be forced into the untenable situation of choosing be­tween their personal religious beliefs and receiving vital help they need.

The Trump administration also pro­poses to strip the requirement that faith-based organizations must pro­vide written notice of people’s religi­ous freedom rights – which could result in those in need not knowing they can object to discrimination, proselytization or religious coercion.

For people who receive social ser­vices through a voucher program (re­ferred to as “indirect aid”), Trump proposed to eliminate the safeguard ensuring there is always at least one secular provider to choose from. This rollback greatly increases the like­li­hood that people will be forced to attend taxpayer-funded programs that include explicitly religious content.

Traditionally, the government per­mit­ted some faith-based providers in voucher programs to include religious content because people theoretically had a choice of using a voucher at either a secular or a faith-based pro­gram and could, therefore, opt out of a religious program while still re­ceiving comparable services else­where. The administration is under­cutting this justification by removing the requirement that there be a sec­ular option – again forcing vulnerable people to choose between their rel­igious beliefs and receiving critical services.

The new regulations also would give taxpayer-funded providers more leeway to discriminate against em­ploy­ees by using a religious litmus test when considering who to hire or fire. The Trump administration pro­poses to expand religious exemptions created by President George W. Bush, which allowed faith-based agencies to discriminate by hiring only people of the same religion, to now include discrimination against people who don’t live by the same religious tenets or practice their faith the same way. LGBTQ people and women are likely to face the most harm from this proposal. This change is similar to a rule proposed by Trump’s Depart­ment of Labor last August for federal contractors, who employ one-fifth of the U.S. workforce.

One other significant element of Trump’s proposed regulations is to add special notices to grant announce­ments and awards alerting faith-based organizations that they can seek addi­tional, unspecified religious exemp­tions from federal laws and regula­tions. In other words, at the same time that the Trump administration is re­moving religious freedom protections for the people who rely on these ser­vices, the government is adding special considerations for the tax­payer-funded providers – placing their needs above the people they serve and paving the way for more government-funded discrimination.

These regulations could harm millions of people who rely on a vast ar­ray of programs through the De­partments of Agriculture, Educa­tion, Justice, Health and Human Services, Homeland Security, Housing and Urb­an Development, Labor and Veterans Affairs plus the U.S. Agency for Inter­national Development. Some ex­amples of harmful situations people could experience include:

• A gay teenager who is homeless might have to seek assistance from a faith-based shelter with anti-LGBTQ views.

• A Jewish person might have to seek mental health counseling from an organization adorned with Chris­tian iconography and literature indi­cating that people must have a per­sonal relationship with Jesus Christ in order to be saved.

• An atheist required to attend a substance use disorder program could be forced into a 12-step program that requires the recognition of a higher power, setting up a nontheist for failure.

• A teenager who is considered at risk of being involved in the juvenile justice system or having substance use issues could seek one-on-one men­toring services from a commun­ity member who pressures them to attend religious programing that the teen doesn’t realize they can decline.

• A woman and her children who are survivors of domestic violence that she believes was rooted in her abuser’s religious beliefs could be left with no option for housing assistance but a faith-based provider with a reli­gious environment that feels trau­matizing for the mother and child.

• An immigrant child unaccom­panied by a parent could end up in the care of a religious provider that would deny transportation and trans­lation services for medical appoint­ments for services the provider opposes on religious grounds, such as reproductive care or LGBTQ services.

Americans United submitted de­tailed comments to each of the agen­cies outlining how the proposed regu­lations undermine religious freedom and would harm some of the most marginalized and vulnerable people in our country. AU also rallied sup­porters to submit their objections to the agencies and assisted allied org­anizations, including those that are members of the Coalition Against Rel­igious Discrimination that AU leads, in commenting on the regulations.

American United has an extensive history of monitoring and analyzing regulations for faith-based organiza­tions, voicing opposition to rules that would undermine separation of reli­gion and government and supporting proposals that protect religious free­dom and beneficiaries.

During his first weeks in office,  Bush signed an executive order that created the White House Office of Faith-Based & Community Initiatives. His adminis­tra­tion soon followed with new regu­la­tions for government partnerships with faith-based organi­zations that were designed to strip away key church-state separa­tion protections that had applied to these partnerships for decades. Bush made it easier for these organizations to proselytize to people seeking ser­vices, including through the dis­play of reli­gious mat­erials in spaces where social services were provided. Bush also allowed taxpayer-funded pro­viders to engage in employment dis­crimination by hiring only “co-reli­gionists” – people of the same faith.

President Barack Obama revised and improved these regulations at the advice of an advisory council he’d convened that represented a diverse spectrum of faith leaders. They met for months before submitting an exhaus­tive report with 12 unanimous rec­om­mendations for improving how gov­ern­ment-funded service providers operate.

The Obama regulations – which remain in effect unless or until Trump finalizes his proposed rules – require providers to give people written notice of their rights, including that the provider cannot discriminate against them based on religious be­liefs or force people to participate in religious activities. Obama also re­quired faith-based organizations to take reason­able steps to find an al­ternative pro­vider if a beneficiary ob­jects to an organization’s religious character.

By contrast, there is no evidence that the Trump administration used an organized process or consulted a diverse group of faith leaders and pol­icy experts before proposing these new regulations.

“On Religious Freedom Day of all days, we must make clear that reli­gious freedom demands that every­one be free to practice their faith, or no faith at all, but only so long as they don’t harm others,” AU’s Laser said in re­sponse to the new rules. “Religious free­dom is not a license to grant unparalleled religious privilege.”

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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