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The final religious freedom moves President Trump could make

The Trump administration may push through a handful of faith-related regulatory changes before leaving office

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President Donald Trump speaks in the Oval Office of the White House during an event on prayer in public schools on Thursday, Jan. 16, 2020, in Washington.

Evan Vucci, Associated Press

President Donald Trump significantly changed religious freedom policy over the past four years as he worked to protect faith groups under pressure over their beliefs about marriage and family life.

He offered relief to religious objectors to birth control, faith-based foster care agencies and people of faith in the medical field, and ordered federal officials to strengthen religious freedom protections in the activities they oversaw.

Despite losing his reelection bid, Trump may not be done shaking things up.

Before leaving office in January, his administration could finalize and publish several regulations aimed at loosening the restrictions on religious organizations receiving government money — changes that would take incoming officials months to unwind if they wished to.

Kelly Shackelford, the president and CEO of First Liberty Institute, said enacting the proposed changes would help Trump solidify his legacy as a champion of religious freedom and reassure the faith groups that fear President-elect Joe Biden’s policy plans.

But Maggie Garrett, the vice president for public policy at Americans United for Separation of Church and State, said rushing the new regulations through the final approval process could harm the people whom church-state partnerships are designed to serve.

“These are complicated regulations. There’s a lot in each one,” she said. “Rushing them through in order to make a Jan. 20 deadline seems problematic.”

The proposed changes

Most of the pending regulations originated in January, when the Trump administration marked National Religious Freedom Day by announcing plans to offer stronger protections to faith-based social service organizations.

Nine federal agencies, including the departments of Justice, Education, and Health and Human Services, released proposed rule changes at the time, and their proposals are only just now nearing the end of the rule-making process.

“Before new rules are finalized, (officials) are supposed to look at potential harms, costs and benefits and make sure they’ve incorporated public comments,” Garrett said.

If enacted, the agencies’ plans would reduce the strings attached to the federal grant money sent to religious groups. Faith-based social service organizations would no longer need to notify a potential client of his or her religious freedom rights or offer referrals to those who prefer being served in a secular context.

“Americans of faith play an essential role in providing health care and human services to so many vulnerable people and communities, and President Trump is dedicated to removing every unfair barrier that stands in the way of this important work,” said HHS Secretary Alex Azar in a January statement explaining proposed adjustments.

Like Azar, Shackelford believes the policy updates would ensure that faith-based organizations aren’t asked to jump through more hoops than their secular counterparts.

Currently, some religious groups decline to participate in government programs out of a fear that they’ll be required to refer people to organizations they find morally objectionable, he said.

But other legal experts, including Garrett, argue that the Trump administration’s plans overlook the potential concerns of people in need.

Someone who is seeking a bed at a homeless shelter or low-cost medical care has a right to know that they have other options besides faith-based service providers, Garrett said.

“The danger here is to the rights of the people who are using these programs,” she said.

There’s a similar debate surrounding proposed changes to the Department of Labor’s rules governing federal contractors, which could also be finalized before Trump leaves office.

The updated regulation would give religiously affiliated contractors, including for-profit organizations, more freedom to hire only employees who share their beliefs. Garrett argues that it would lead to discrimination against members of the LGBTQ community and other vulnerable groups.

“The regulation says employers get to define what it means to be faithful,” said Stanley Carlson-Thies, founder and senior director of the Institutional Religious Freedom Alliance. “It’s very controversial to some people.”

Looking ahead

Although Congress can overturn regulations put in place during an administration’s final days in office, it’s common for officials to move forward with last-minute rule changes, Carlson-Thies said.

For example, the George W. Bush administration pushed through expanded conscience protections for doctors, nurses and other medical professionals just before Barack Obama was sworn in.

“Some people are saying this is unprecedented, but that’s crazy,” Carlson-Thies said. “This is very common.” 

Despite this precedent, Garrett believes it would be wrong for the Trump administration to finalize and enact the pending regulations in the final weeks before Inauguration Day, in part because of the potential controversy surrounding them.

“These regulations are only concerned about faith-based organizations. They don’t consider the ... people who need these services,” she said.

Enacting the rules would also cause unnecessary confusion, since the Biden administration will likely work to replace them as soon as they’re in office if Congress doesn’t take action, Garrett said.

“They’d have to go through the rule-making process again,” she said. “People could be harmed in the meantime.”

Shackelford, on the other hand, said it would be worse for current officials to throw away an opportunity to help religious organizations.

“The administration is still in power ... and they should do what they were elected to do, which includes protecting religious freedom,” he said.

By enacting the regulations, the Trump administration would give incoming officials a chance to see their value, Shackelford added.

“Some things that are put into place nobody is going to want to undo,” he said.

Carlson-Thies agreed that it sometimes takes implementation to understand which concerns about a proposed policy were overblown.

“Once put into effect, we can see whether the good intentions and designs (behind a new regulation) are fulfilled or if there need to be adjustments,” he said.

Whether or not the proposed rules are enacted, the Biden administration should take the time to study what current officials were trying to do, Carlson-Thies said. Presidents have been refining the rules governing church-state partnerships for decades, and Biden will soon have an opportunity to do just that.

“I think there’s room for coming to win-win solutions” that would draw on the Trump administration’s regulations, as well as work done by previous administrations, he said.