Pres. Obama Issues New Executive Order on Faith-Based Rules

Pres. Obama Issues New Executive Order on Faith-Based Rules

On Nov. 17 President Obama signed an Executive Order on “Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations.” This Executive Order amends—while maintaining the principles of–President Bush’s EO 13279 (December 12, 2002), “Equal Protection of the Laws for Faith-Based and Community Organizations.”

The most important thing to note about the amended EO is how few changes it makes. The principles it sets out are refinements, not alternatives, to the principles of the Bush E.O. (Neither E.O. directly deals with the contentious issue of religious hiring by federally funded faith-based organizations.)

There is one very important and large positive change: a guarantee that a person who objects to receiving services from a faith-based provider will be referred to an acceptable alternative provider. This is actually a Charitable Choice feature, put into several federal laws during the Clinton administration. It is a positive affirmation of the religious freedom rights of people seeking help. The E.O. offers new terminology in an attempt to better define the religious activities that have to be kept separate from services that the government funds “directly” (through grants and contracts, rather than vouchers). Yet, at the same time, the E.O. affirms that a faith-based organization can offer privately funded, voluntary, religious activities, even though it does receive federal funding to provide services. And the E.O. affirms that the religious character of the faith-based organization will be specifically protected in regulations.

One innovation: a new implementation working group, to be headed by the Office of Faith-Based and Neighborhood Partnerships and the Office of Management and Budget, to determine which federal regulations and guidance need to be updated and how the federal government can put into practice the principles of this amended Executive Order.

President Obama’s E.O. is based on the “Reform of the Office” portion of the recommendations adopted last March by the President’s Advisory Council on Faith-Based and Neighborhood Partnerships.

The Advisory Council was broadly representative, including both religious and secular leaders, and conservative as well as liberal members. The taskforce that drafted the “Reform of the Office” recommendations included a diverse subset of Council members and a diverse set of outside experts (including your editor).

The taskforce and Council labored over many months drafting and redrafting recommendations. It was plain from the start that, unlike in the mid-1990s when Charitable Choice was first proposed, there is now a broad (though not universal) consensus. That broad consensus is due, in part, to US Supreme Court decisions since the mid-1990s. It is probably due also in part to this reality: the changes to government practice that have been made in going from a “no aid to religion” standard to the current “equal treatment” standard have not–despite the fears of some–led to a theocracy or to clients being forced into unwanted religion.

Some on the Advisory Council and the taskforce wanted the administration to require or recommend that faith-based groups cover-up or remove religious items from places where federally funded services are delivered–but the Executive Order instead restates that services can be offered in spaces that include religious symbols. And some on the Council and taskforce wanted new rules obligating every group receiving federal funds to have actual 501(c)(3) status (and not some other form of legal structure and status). In fact there are a number of ways that the proper separation between “church” and “state” can be achieved in the government’s partnership with faith-based service organization–and the Executive order wisely declines to lay the burden of obligatory 501(c)(3) status on every group.

President Obama’s Executive Order sets out a clear and positive set of principles, and thereby confirms a three-administration process of clarifying and confirming the rightful equal place of faith-based services when the government is involved.

Over time, some additional progress is needed.

(1) The administration–despite the protests it would face–should commit in principle to what is its policy in pragmatic reality: faith-based organizations that receive federal funds do not thereby lose their freedom to take account of religion when hiring and firing. Some federal programs do ban religious hiring by all grantees. However, in such cases faith-based organizations can appeal to the Religious Freedom Restoration Act to have this substantial burden lifted so that they can take part in the program without sacrificing their hiring practices.

(2) The administration should extend its support of the Access to Recovery program, which uses voucher funding, into a more general commitment to expanding voucher funding to replace much of the current extensive grant and contract funding. With grants and contracts (“direct” government funding), the specific services that are funded cannot include religious activities and discussion–even if religion would be helpful to the clients and even if clients desire spiritually based help. Vouchers allow religion to be part of the government-funded services, and they maximize choice for the clients. Vouchers are a great solution–and they go just a step further than President Obama’s Executive Order, which guarantees that a person who does not want to be served by a faith-based provider will have an alternative (secular) provider. The next step is to maximize choice and freedom and assure everyone of a choice among multiple religious and secular services.