Article

Five new religious freedom protections on Religious Freedom Day

Jan 17, 2020

On Thursday, the White House announced new executive actions and agency regulations to ensure federal policy upholds religious freedom and the foundational right for the free exercise of religion.

The actions across the Administration involved nine federal agencies proposing rules to deal with a range of important issues such as a student’s right to pray in school and the equal treatment of religious organizations in the federal grant making process. The date of this announcement was significant as January 16 is National Religious Freedom Day, the annual commemoration of the adoption of Thomas Jefferson's Virginia Statute for Religious Freedom in 1786.

Here are five new protections for religious liberty among yesterday’s announcements: 

1. Religious student groups at public universities will be guaranteed equal access.

The Department of Education’s proposed regulations include a new provision that would protect religious groups on the campuses of public universities. In many cases, these groups, like Cru, InterVarsity, and Christian Legal Society, have faced pressure from school administrators to eliminate requirements that leadership share the core beliefs of the organization and in some cases have even been kicked off campus and 

These new regulations will ensure that religious student groups are afforded the same benefits and recognition by the university as other student groups. 

2. States will be required to comply with Trinity Lutheran v. Comer when administering federal grants.

Last year, the Supreme Court in Trinity Lutheran v. Comer held that states may not prevent faith-based organizations from receiving state funds generally available to the public, simply by virtue of the fact that the organization is faith-based. In the majority opinion, Chief Justice Roberts wrote, “this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’” The Administration, through an OMB memo, is extending this principle across all federal agencies, directing all federal agencies to ensure that states are not restricting access of faith-based organizations to public programs.

This new OMB memo is focused on state-level “Blaine Amendments,” which serve to prohibit government funding from going to faith-based organizations and schools. The history of the Blaine Amendments is complex but is rooted in anti-Catholic animus; the original amendments were designed to ensure that any government funding to parochial schools was cut off. 

Federal agencies will now be required to ensure that states administering federal grants allow all organizations, regardless of whether they are faith-based, equal access to federal programs and public goods.

3. Student prayer and religious expression in school is further protected.

The Department of Education released new guidance on religious expression by students in public schools and a new requirement that local school districts must certify in writing that they have “no policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public schools.”

Practically, this new guidance clarifies what religious expression school districts may allow in schools. In some cases, school administrators, fearful of legal action, restrict religious activities more than is required by the U.S. Constitution. But the guidance will also provide students and parents with federal directives to point to that their religious expression is permitted under U.S. law in the case of a conflict.

By statute, the Department of Education must issue new guidance every two years, but updated guidance was last issued by the George W. Bush Administration in 2003. The updated guidance is similar in substance to the Bush-era guidance, but the White House’s new certification mechanism will provide new accountability for school districts and is an important policy development.

4. Nine federal agencies issued new rules eliminating regulations that unfairly applied only to faith-based organizations.

The Departments of Agriculture, Education, Health and Human Services, Homeland Security, Housing and Urban Development, Justice, Labor, Veterans Affairs, and the United States Agency for International Development (USAID) issued new proposals of rules regarding the interactivity of faith-based organizations with federal government programs. These federal entities contract with organizations, including faith-based organizations, to provide an array of services to communities and for other public needs.

As one example, the U.S. Department of Agriculture (USDA) efforts this week both removed burdensome rules that compelled faith-based groups with a series of complicated procedures of unequal treatment and instituted new regulations to ensure equal treatment in USDA award selection.

These new regulations follow Supreme Court’s Trinity Lutheran precedent. The collective weight of this week’s new rules provide the needed clarity from the executive branch that the judicial branch affirmed with Trinity Lutheran: the federal government cannot treat an organization differently simply because it is religious.

5. Faith-based nonprofits serving their communities will no longer be required to discount their religious character.

Under rules issued by the previous Administration, faith-based nonprofits were required in some cases to post notices about their faith-based characteristics and refer individuals who may be offended by their faith to other nonprofits. The current Administration repealed these regulations to once again ensure faith-based nonprofits are able to continue serving their communities without caveats that cast aspersions, the same way as any other equally qualified organization.