Each new administration brings with it challenges and opportunities for upholding America’s First Freedom. The Biden Administration is already taking actions that will shape religious liberty in America for years to come, and this article is the fourth in a series intended to assess these efforts. Written by scholars and experts affiliated with the Religious Freedom Institute (RFI), articles in this series will highlight key executive orders, proposed regulations, dear colleague letters, and similar policy statements and provide insight into their implications for religious freedom. Sometimes they will be written for a general audience and other times for a particular religious community—public discourse in a pluralistic society takes both forms, and RFI intentionally brings them together here.

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The Biden administration announced the establishment of the White House Office of Faith-Based and Neighborhood Partnerships on February 14, 2021. Through Executive Order 14015 (accompanied by this Fact Sheet), President Biden is reestablishing an institution that is supported by a policy consensus hearkening back to the Obama administration and to the Bush administration before that. The only notice taken of the intervening Trump administration’s faith-based initiative is a section of the executive order that, without naming former President Trump, revokes his Executive Order 13831 of May 3, 2018, which established his version of the initiative. Indeed, it is clear from the Biden Executive Order, the Fact Sheet, and the appointment of Melissa Rogers to direct the reestablished White House Office—which she led in President Obama’s second term—that the new administration plans to resume the initiative as it had developed before the Trump years. That is good news, a matter to which I will return momentarily. But the Biden faith-based initiative faces strong pressure to develop in unhelpful ways.

The first White House faith-based office, with corresponding faith-based Centers in the major federal departments that administer federal spending for social programs, was created by President George W. Bush in 2001. To provide some background,  this office was adopted as part of the 1996 welfare reform law, signed by President Bill Clinton. That law put forth Charitable Choice principles, which replaced the previous “no aid to religion” restrictive federal funding rules.  These new rules were based on the Supreme Court’s gradual adoption of a neutrality interpretation of the First Amendment.

Charitable Choice required that faith-based providers be eligible for federal funding equally with secular providers; that their religious character and voluntary religious activities be protected, not suppressed; and that the right of beneficiaries to service without religious discrimination or coercion be honored. President Bush extended these rules across federal funding by promulgating Equal Treatment regulations. Despite controversy, a significant consensus on this new understanding of church-state relationships developed.

President Barack Obama adapted the Bush faith-based initiative, adding an Advisory Council on Faith-Based and Neighborhood Partnerships to draw into federal policymaking insights from the religious and nonprofit sectors and to ensure the constitutionality of the Equal Treatment rules. The Advisory Council accepted the rules but recommended a significant change, which the President accepted. President Obama promulgated a modification of the Equal Treatment regulations to extend across all federal funding the Charitable Choice provision that a beneficiary can request an alternative if he or she objects to the religious character of a faith-based provider, and obligated such providers to give beneficiaries notice of this and other rights. These changes were widely seen as a valuable extension of the consensus on the new parameters for federal funding of religious service providers.

However, the succeeding Trump administration took issue with those changes. Initially President Trump paid no attention to the faith-based initiative, although, of course, the faith-based initiative centers based in federal departments continued their work and the Equal Treatment regulations continued to require equal access to funding for faith-based organizations. When he did issue a faith-based Executive Order, 15 months into his presidency, Trump designated a White House Advisor for the Faith and Opportunity Initiative. Rather than reopening a White House Office, the Advisor was located in the Office of Public Liaison, the White House operation that mobilizes public support and connects with the administration’s base.

In its final year, the Trump administration changed the Equal Treatment regulations. Arguing that President Obama’s required referral and notice unconstitutionally placed a heavier burden on religious than secular grantees, the Trump administration eliminated the new requirements. Many, including some faith-based organizations and religious freedom advocates, advised that the administration should instead require secular as well as religious grantees to provide notice and that it should obligate government agencies, not private providers, to administer referrals. In this way the constitutional problem would be addressed while deepening, instead of weakening, the broad consensus on the rules. The religious freedom of faith-based organizations would be better protected while also extending protections for beneficiaries. The Trump alternative instead increased the rights of religious organizations while weakening beneficiary protections.

It is those changes to the Equal Treatment regulations that the Biden Executive Order targets, although without naming the issue. Melissa Rogers, Director of the Biden White House Office of Faith-Based and Neighborhood Partnerships, was a prominent critic of the Trump changes and is a strong advocate of strengthening the consensus rules, so there is good reason to expect that the regulations will be modified again to strengthen beneficiary protections. The eligibility and requirements for participation of religious organizations in government funding have been one of the most contentious constitutional controversies since the Second World War. It is highly important that Charitable Choice and the Equal Treatment rules—with their careful attention to the multiple entities and rights involved, the conflicting concerns of advocates, and the details of government funding and government regulation—are maintained with an eye toward preserving the substantial consensus on how they operate and their underlying principles. Faith-based providers play such important roles in the provision of social services and are indispensable examples of religious exercise in our society. And their broad inclusion in federal funding has marked a highly significant advance in church-state relations and in institutional religious freedom.

The Biden administration will have achieved a major gain if it returns to the consensus on funding rules. Also positive is the reopening of an actual White House Office, and not just having an Advisor. This new office has the potential to carry weight in the administration. Melissa Rogers is experienced and widely known, and she is widely respected not only for her church-state expertise but also for her commitment to listening widely and seeking common- ground solutions. The office will have a significant staff—in addition to Rogers, it has a Deputy Director (Josh Dickson, who was Faith Engagement Director for the Biden presidential campaign) and a liaison to African-American communities (Trey Baker, White House Senior Advisor for Public Engagement). It will also have, on detail from the Health and Human Services Partnerships Office, Ben O’Dell, who has deep expertise and institutional insight from his 17+ years in the federal faith-based initiative. Rogers, in addition to directing the White House Office, has been appointed to the new position of Senior Director for Faith and Public Policy in the Domestic Policy Council, the president’s chief policy shop for domestic matters. Moreover, the White House Office will coordinate, facilitate, and encourage the vital work of the departmental Centers for Faith-Based and Neighborhood Partnerships—the officials located right where federal programs are designed and award decisions made—a major and positive change from the largely hands-off role of President Trump’s faith-based Advisor, Pastor Paula White. Another positive sign is the stated commitment of the administration and of Melissa Rogers to even-handedness in listening to and working with America’s diverse religious and secular communities, a major change in optics, if somewhat less of a change in practice, from the Trump partnerships initiative.

Set against these very positive aspects are significant challenges. The diversity of communities the Partnerships Office must be responsive to has become extensive, indeed: not only organizations inspired by one of many different religions but also those that are interfaith as well as resolutely secular; not only religious believers but also increasingly more “nones” and avowed secularists. How will all of these different and often conflicting perspectives and needs be accommodated? In a set of recommendations she co-authored with E.J. Dionne before the election, Rogers rightly identified this as one key challenge.

The strong tie of the Partnerships Office with the White House Office of Public Engagement (OPE) may be problematic. OPE (like the Trump White House’s Office of Public Liaison) is the outreach and support-generating function of the White House. Government partnerships certainly require extensive connections with various communities and not only carefully designed regulations. Yet there is the grave danger here of pressuring faith-based and secular organizations to be not only the government’s partners in service to reach common goals but also, in order to retain the government’s favor, cheerleaders for its wider public policies. Many faith-based organizations would find this deeply objectionable.

The biggest challenges to the Biden partnerships initiative, however, will come, as it were, from outside the initiative itself, from other commitments of the President and his Democratic Party. The problems will most likely arise from the administration’s firm devotion to expanding reproductive rights and LGBTQ civil rights, without, it so far appears, any significant protections for people and organizations whose religious beliefs or claims of conscience propel them to be pro-life or devoted to traditional sexual ethics. The Equality Act, for example, one of the administration’s chief legislative priorities, would expand reproductive rights and LGBT rights while explicitly decreasing religious freedom protections by making the Religious Freedom Restoration Act no longer available as a defense if a religious person or organization is charged with discrimination.

The Equality Act does not reference Charitable Choice or the Equal Treatment regulations. But it would affect many faith-based organizations nonetheless. It would add a prohibition of sex, sexual orientation, and gender identity discrimination to Title VI of the 1964 Civil Rights Act, which governs federal financial assistance, such as federal grants. There would be no religious exemption, and the new prohibitions would apply comprehensively to an organization that receives any federal funding—that is, even services and parts of the organization that are privately funded would be subject to the new restrictions. Faith-based homeless shelters, adoption agencies, colleges, and schools that are committed to traditional sexual ethics would, if they accepted any federal funding, be required to set aside certain religion-based policies and standards, even in activities not funded by the government. Orthodox Jewish and Muslim houses of worship that have sex-differentiated seating would become ineligible for federal security grants intended to protect worship facilities from terrorist acts. And so on. Other actions by the administration designed to further reproductive and LGBTQ rights—such as nullifying the Trump administration’s regulation that broadly protects religious staffing by religious organizations that accept federal contracts or subcontracts to provide services or perform research—will also undermine federal partnerships with many faith-based organizations.

There is likely also to be major pressure on federal partnerships, notwithstanding the administration’s strong stated support for them, from its commitment to greater federal activism. More action by government can mean less space for action by civil society organizations and by business. There is not a one-to-one trade-off between government and non-government sphere, of course. Much government action makes possible, or improves, the existence and functioning of companies, nonprofits, and churches—for example, public health measures and firefighting, traffic and air traffic control, the postal service and roads, banks and the financial system generally, regulation of professions and accreditation of educational institutions. And where the government is active to provide services, it can do so in partnership with faith-based and secular organizations, and, assuming its partnership rules are hospitable to civil society organizations, greater government spending can result in additional partnerships and more activity by civil society organizations. However, expanded government support for services may limit the
scope for partnerships and indeed for the provision of services by civil society organizations. The Biden administration, for example, wants to broaden access to two years of higher education. If it requires students to go to community colleges (government-run, secular) for those two years, then some of the students who might otherwise attend faith-based or secular private education might never enroll.

A productive federal partnerships initiative demands a strong commitment to the equal treatment consensus and its funding rules, and it requires a well-staffed and effective institutional apparatus. But even more important than these elements is an unwavering government commitment to respecting the autonomy and institutional religious freedom of civil society organizations. Will the Biden administration prove to have that commitment?

Other Articles in This Series:

• What Catholics need to know about Biden’s executive order on gender identity (Feb. 3, 2021)

• Executive Action on International LGBTQI Rights: Progressive Prejudice Against Faith and Tradition? (Feb. 17, 2021)

• Biden-Harris Memo on Protecting Women’s Health Elides Real Health Issues, Enlists Religious Dissenters in Funding Abortion (Feb. 17, 2021)

Additional Resources:

White House Executive Order on the Establishment of the White House Office of Faith-Based and Neighborhood Partnerships (Feb. 14, 2021)

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Stanley Carlson-Thies is Founder & Senior Director of the Institutional Religious Freedom Alliance, a division of the Center for Public Justice based in Washington, D.C. He is also a scholar with RFI’s Freedom of Religious Institutions in Society Project.