The Biden administration is hailing proposed rules aimed at protecting the religious liberty of clients of faith-based charities, but critics say the changes would obliterate protections for the thousands of religious charities that receive federal funds.
The Department of Health and Human Services this year announced the proposed changes, which include requiring religious charities that receive federal funds to provide clients with written notice of their nondiscrimination policies and with referrals to alternative services if clients object to the charities’ programs.
The health agency says the proposals would expand access to federally funded programs and services and would apply to HHS and the departments of Agriculture, Education, Homeland Security, Housing and Urban Development, Justice, Labor, and Veterans Affairs, and the Agency for International Development.
“There is no need for this proposed rule-making,” said Rachel N. Morrison, who directs the HHS Accountability Project for the Ethics and Public Policy Center, a Washington think tank.
Ms. Morrison said the proposed rules are “a solution in search of a problem. And it goes to the Biden administration’s efforts to say they care about the First Amendment and religious liberty, but at the same time, they are going out of their way to gratuitously roll back protections for people of faith and religious organizations and minimize their participation and protection under the law.”
The Department of Health and Human Services did not immediately respond to a request for comment.
A 2016 study by social science researchers Brian J. and Melissa E. Grim found that 344,984 congregations of various faiths use government grants, contracts and fees to provide social services in their communities, signifying the religious groups’ importance in aiding those in need.
The proposed changes cite Title VII of the 1965 Civil Rights Act, which bans employment discrimination based on race, sex, national origin and religion. Religious organizations are generally exempt from the employment discrimination requirement.
Under the proposals, religious charity clients must be given written notice of nondiscrimination policies, including a right to refuse “to attend or participate in a religious practice” as part of a charity’s services.
With regard to hiring, “the Title VII religious exemption does not permit such [religious] organizations to discriminate against workers on the basis of another protected classification, even when an employer takes such action for sincere reasons related to its religious tenets,” the new rules state.
HHS says the proposals carry forward a 2021 executive order signed by President Biden and remedy problems caused by a 2020 Trump administration rule.
“The rationale they give is … very gratuitous,” Ms. Morrison said. The agencies “cite no community or population that is not receiving services or programs or how this proposal would increase that in any way.”
In a public comment on the proposals, the public interest law firm First Liberty Institute said: “The proposed amendments would delete existing regulatory text that acknowledges the [Title VII] exemption provides a defense to claims other than religious-discrimination claims. … The agencies’ cramped view of the religious employer exemption is wrong.
“The agencies’ changed view about the scope of the religious employer exemption contradicts the text of Title VII, flouts the great weight of federal-court precedent interpreting the exemption and in many applications risks violating [the 1993 Religious Freedom Restoration Act],” First Liberty said.
A 60-day public comment period for the new rules ended on March 13. The agencies will review submissions, develop the final rules and move toward implementation.
Ms. Morrison said she would be surprised if a final version is adopted before the end of the year.
• Mark A. Kellner can be reached at firstname.lastname@example.org.
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