Welcome

Faith-Based Groups Get Additional Protections Under Rule (1)

Dec. 14, 2020, 2:46 PM; Updated: Dec. 14, 2020, 9:17 PM

Faith-based organizations will be treated the same as secular organizations in federal programs, according to a rule finalized by nine federal agencies Monday.

The rule also clarifies that “faith-based organizations do not lose their legal protections and rights just because they participate in federal programs and activities,” including their right to conscience protections, the Department of Health and Human Services said.

The rule was issued by the HHS with the Departments of Justice, Homeland Security, Labor, Education, Housing and Urban Development, Agriculture, Veteran’s Affairs, and the Agency for International Development.

“This new rule reflects the commitment President Trump has upheld during his time in office to protect the religious freedom and conscience rights of all Americans, including those who receive support from federal programs to do their good work,” HHS Secretary Alex Azar said in a statement.

The Trump administration received over 95,000 public comments from lawmakers, state and local governments, and advocates, among others.

Most of the agencies also clarified that they won’t discriminate in selecting an organization based on its religious exercise or affiliation.

The Department of Labor released a final rule last week governing exemptions available to some religious organizations that hold federal contracts.

As it relates to DOL, the new rule, finalized Monday, “opens the door for broader discrimination using federal dollars—allowing a broader swath of organizations to take federal money and refuse to provide services to people they don’t like as a matter of ‘conscience,’” according to Adam Pulver, a former Labor Department attorney now with consumer advocacy group Public Citizen.

It also pulls back a “protective requirement” that if a program that receives Labor Department dollars turns someone away on religious grounds, “they have to at least let people know other places they can access those services,” Pulver said in an email.

The regulation represents an overall strengthening of religious rights under the U.S. Constitution for faith-based organizations, that have felt that they’ve “been under attack for years,” Dov Kesselman, a partner with Seyfarth Shaw, said in an email. Religious institutions can now feel more protected to make decisions based on their faith without fear of liability exposure.

“It remains to be seen how this guidance will be applied in practice, as well as how the incoming Biden Administration will view the agencies’ new guidance and rules,” Kesselman said regarding the new rule and the DOL. “These new rules and guidance are, however, based on new Supreme Court precedent that cannot easily be ignored and will define a more welcoming environment for religious institutions.”

The rule will take effect 30 days after publication in the Federal Register.

The rule follows another regulation from the HHS that allows health-care workers to deny care based on their religious and moral beliefs. The religious conscience rule was tossed out by three courts and is on appeal to the U.S. Court of Appeals for the Second Circuit.

(Updated to reflect additional reporting.)

To contact the reporters on this story: Shira Stein in Washington at sstein@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Andrew Childers at achilders@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.