Sunday, January 19, 2020

3 Religious Liberty Actions by the Trump Administration

Senators Daines, Lankford, Blunt and other Senators introduced a Religious Freedom Day resolution in the Senate, S.Con.Res. 34.

President Trump made remarks from the Oval Office. The White House issued a proclamation and fact sheet, and announced three actions it is taking to better protect organizations and people of faith:

1. The White House announced that nine agencies are issuing proposed rules consistent with Executive Order 13831 to ensure that religious and nonreligious organizations are treated equally by the federal government because of their religious nature. These rules specifically address rules from the previous Administration that gave religious organizations second tier status to secular ones and imposed additional burden on religious partners.

The agencies have worked together and with the White House to make the regulations consistent with the First Amendment and the Religious Freedom Restoration Act (RFRA) and remove discriminatory policies to ensure faith-based and secular partners are treated in the same way.

These regulations do note change anti-discrimination protections for all beneficiaries. All organizations will be prohibited from discriminating based on religion, so regardless of how an organization operates, it has to agree that it won't turn away a beneficiary because he or she holds a different faith. Any organization that does discriminate will not be able to compete.

The regulations also update the definition of “indirect aid” to align with Supreme Court precedent and ensure faith-based organizations are not subject to different rules while working with underserved populations.

Nine agencies have taken action:

U.S. Department of Agriculture
Press Release
Proposed Rule

U.S. Department of Education
Press Release
Proposed Rule
*Of note, among other things, Ed's regulation includes a requirement that a public institution of higher education not deny any of the rights, benefits, or privileges to a faith-based student organization that is otherwise afforded to non-faith-based student organizations, including protections for leadership of religious student groups.

U.S. Department of Health and Human Services
Press Release
Proposed Rule

U.S. Department of Homeland Security
Press Release
Proposed Rule

U.S. Department of Housing and Urban Development
• Regulation to be posted in a few days.

U.S. Department of Justice
Press Release
Proposed Rule

U.S. Department of Labor
Press Release
Proposed Rule

U.S. Department of Veterans Affairs
Proposed Rule

United States Agency for International Development (USAID)
Proposed Rule

2. In addition to the regulations, the Department of Education also issued an updated guidance on prayer and religious expression in schools. This guidance is statutorily required to be updated every two years, but hasn't been since 2003. The Department of Education will, Lord willing, be notifying every State that students should be allowed to exercise their rights of free speech and free exercise, and school officials should not break up student led prayer.

As a condition of receiving funds, each school will have to certify to its State Education Department that it doesn't have a policy that prevents constitutional exercise of prayer.

The guidance updates current policy by adding references to additional SCOTUS precedent and providing a clear process for people to report violations of prayer in schools that will then be reported to the Department of Education.

The updated document adds a section on religious expression, as opposed to only prayer.

3. Acting Director of the Office of Management and Budget Russell Vought also issued a memo that requires federal agencies to ensure all federal grant making processes and state grant making processes comply with the first amendment in conjunction with the Trinity Lutheran decision, which clarified that organizations cannot be discriminated against in competing for a grant because of the organization's religious nature, as well as the Attorney General Memo from 2017.

Currently, 37 states have laws governing award sub-grantees, such as Blaine amendments, that can be used to discriminate against religious institutions. The OMB memo makes clear to grant agencies that sub-awards cannot discriminate against grantees based on faith.

Essentially, to be eligible for federal funding, states may not enforce these laws. This doesn't mean states must repeal these laws necessarily, but they must adopt a policy of non-compliance.

The Supreme Court is scheduled to hear Oral Arguments on January 22, 2020 in another Blaine Amendment case, Espinoza v. Montana Department of Revenue.

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