President Joe Biden has promised to heal a suffering country. To do so, he’ll have to look to religious organizations for help.
Faith-based social service providers have long played a crucial role in the government’s efforts to feed the hungry, shelter the homeless, care for the sick and combat unemployment. As then-President George W. Bush wrote in 2001, the whole country benefits when church-state partnerships are strong.
“Faith-based and other community organizations are indispensable in meeting the needs of poor Americans,” he said.
Twenty years later, that statement is still true, but debates over how to regulate faith groups that work with the government have never been more contentious, legal experts said.
Policymakers no longer agree on whether federal funds should come with strings attached.
“Sometimes, in these conversations, people are starting from a position of religious privilege. They feel they have a right to receive government money,” said Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty.
Additionally, the push to expand federal LGBTQ nondiscrimination protections has thrown funding rules into a state of flux, said Stanley Carlson-Thies, founder and senior director of the Institutional Religious Freedom Alliance. It’s unclear whether religious organizations that object to serving gay or transgender beneficiaries should still be eligible to receive federal funds.
“Somebody has to figure out how do we provide equal rights for LGBTQ people, but also allow faith groups to continue to be at the table,” he said.
In order to enjoy the benefits of church-state cooperation, the Biden administration must find a way to resolve these growing debates.
A complicated relationship
Even before battles over gay rights and funding access heated up, managing church-state partnerships was far from easy.
Policymakers have struggled to determine what types of faith-based programming the government can lawfully fund and how best to guard against religious discrimination, said Carlson-Thies, who worked on the issues with both the Bush and Obama administrations.
Until the mid-1990s, federal officials generally erred on the side of discouraging faith groups from participating in federal programs. They wanted to avoid even the appearance of funding religious activities, so they allowed only secular organizations to apply for grants.
“There were all these rules regarding what kinds of religious organizations could get (government) money. There were questions about how much religious stuff was sitting around in the waiting room, what types of literature was sitting out, whether there was a cross on the wall and who was on the board of directors,” Carlson-Thies said.
However, around the time President Bill Clinton took office, two things happened that made policymakers rethink the relationship between faith groups and the state: The Supreme Court ruled it was legal for churches to participate in a government-sponsored sex education program and Congress took up the issue of welfare reform.
These events made strict rules regarding religious decor and leadership seem unnecessary and detrimental to the government’s goal of helping people in need, Carlson-Thies said.
“If you write the rules in a way that doesn’t work for a religious group that otherwise would do a great job for you, you’ll knock out one of the best potential service providers,” he said.
In 1996, Clinton signed a new set of funding rules, deemed “charitable choice,” into law. The new regulations made it clear that faith groups didn’t need to abandon their religious character in order to be eligible for government grants.
“Policymakers wanted to increase opportunities for the government to partner with religious organizations,” Carlson-Thies said.
Under the new rules, faith-based applicants were judged based on their willingness to work with a wide variety of clients, rather than on how they decorated their building.
“You can’t fund religious groups if what they’re going to do is say to a Muslim who comes through the door, ‘We’re happy to give you job training as soon as you become a Presbyterian,’” Carlson-Thies said.
When Bush took office, he embraced and expanded the charitable choice approach. He signed an executive order on Jan. 29, 2001, that established a White House office tasked with coordinating and promoting church-state partnerships across the entire federal government.
“The Bush administration made it a domestic priority to expand and encourage partnerships between religious institutions and the government,” Hollman said.
Refining the rules
For the past 20 years, Clinton’s charitable choice guidelines and Bush’s White House Office of Faith-based and Community Initiatives have remained mostly intact.
However, policymakers have continued to tweak the rules to ensure that neither religious organizations nor the people they serve face discrimination because of their beliefs.
“What we have to have is a balanced system that protects the religious character of faith-based providers and the religious freedom rights of beneficiaries,” Carlson-Thies said.
After convening a diverse faith-based advisory council to review funding rules, President Barack Obama increased the legal protections offered to Americans seeking government-sponsored services.
He required faith groups to let potential clients know they didn’t have to work with religiously affiliated organizations. Additionally, he instructed faith-based providers to offer referrals upon request.
Although many religious freedom advocates applauded these changes, some organizations pushed back. The new rules placed an unfair burden on faith groups, they said, noting that secular social service organizations were not held to the same standards.
Just before leaving office, President Donald Trump finalized new rules that undid key aspects of the Obama-era adjustments. Faith-based service providers no longer have to provide referrals or advise potential clients about their rights.
“The Trump administration beefed up protections for religious groups. They did it, in part, by reducing protections for beneficiaries,” Carlson-Thies said.
These changes, like Obama’s, were controversial. But they’ll remain in place until Biden proposes and finalizes his own set of adjustments.
Biden’s to-do list
Even before Trump’s last-minute policy updates, it was clear the Biden administration was going to have to make some difficult decisions related to church-state partnerships, legal experts said. Growing conflict over how to apply the Constitution’s religious freedom protections has disrupted the status quo.
Much of today’s conflict stems from efforts to address anti-LGBTQ discrimination, Carlson-Thies said. Policymakers do not agree on whether it’s fair to require faith groups that receive federal money to hire or serve people who are gay or transgender.
“If you change nondiscrimination rules, you change the whole possibility of (religious) groups being at the table,” he said.
But if you don’t change the rules or you pair changes with faith-based exemptions, you increase the likelihood that some vulnerable Americans will be unable to access the help they need, Hollman said.
“When there are broad, faith-based exemptions that might ... threaten the distribution of or access to services, then the whole endeavor is out of whack,” she said.
In addition to determining how best to expand gay rights protections, the Biden administration was always going to have to respond to current debates over whether faith-based organizations must be included in government funding programs, legal experts said.
Religious freedom advocates disagree on whether the Constitution simply allows church-state partnerships or whether it actually requires them, said Maggie Garrett, vice president for public policy at Americans United for Separation of Church and State.
“Today, some religious groups are saying that to not get some government money is discrimination,” she said.
Other, more liberal faith-based organizations argue that it’s fine to force groups that won’t accept the government’s terms to survive on their own.
“Faith-based organizations have sources of income that commercial and independent organizations do not,” said Rabbi Jack Moline, president of the Interfaith Alliance.
In general, policymakers on both sides of the aisle remain supportive of faith-based social service providers. They recognize, just as the officials in charge of welfare reform did, that religious organizations are often very good at helping people in need.
“Faith-based organizations can often provide very powerful results for people,” Rabbi Moline said.
However, lawmakers are also aware that church-state partnerships are increasingly viewed with suspicion. The Biden administration must chart a path forward that both respects religious freedom and ensures proper separation between faith groups and the government, Hollman said.
“To the extent that religious providers are seen as taking government money to promote their religion, that’s a huge threat to the Constitution,” she said.