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Obama Clarifies Religious Liberty Protections, Strengthens Foundation of Faith-Based Policy

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It was not fast and it did not finish the job, but the Obama administration's executive order clarifying policies on government partnerships with faith-based organizations is important. Largely based on recommendations of his Advisory Council on Faith-Based and Neighborhood Partnerships, the changes will improve social services delivery and protection for religious liberty. Everyone who respects the First Amendment's religious liberty protections should be thankful for this development.

The Obama amendments were primarily designed to shore up the legal basis of the existing federal policy, which was created by an executive order of George W. Bush. These amendments seem likely to reduce the risk that government money will be used to promote religion. Of course, the Bush order stated that federal programs had to comply with the First Amendment's Establishment Clause and Free Exercise Clause. The Bush administration, however, was properly criticized for using vague, skimpy language that failed to sufficiently capture the Establishment Clause's prohibition of government-funded religion. Worse, their weak regulatory scheme was often overshadowed by promises that government would fund what works -- including those programs that were saving souls one at a time -- and the often repeated but unsubstantiated claim (debunked even by the first director of President Bush's faith-based office) that religious organizations were better at addressing social ills than their secular counterparts.

The notable changes in the Obama amendments sharpen the distinctions about what is and is not allowed in a program that is directly funded by the government, and these changes appear more likely to lead to compliance. Specifically, organizations are forbidden from engaging in "explicitly religious" activities in the course of a program that receives direct federal financial assistance. Such activities by religious organizations that receive federal financial assistance must be separated in time and place from the government-funded activity. While the executive order maintains protection of the character of faith-based organizations, allowing them to compete and participate in federal funding programs without changing their name or impairing their independence, it notes that their religious expression is protected outside the government-funded program. In other words, and consistent with long-standing standards, an organization is not prevented from competing for or receiving federal money just for being religious. The government program, however, must not include religious content.

The Obama amendments highlight the fundamental nature of this distinction by adding provisions aimed to increase compliance, accountability and transparency, all of which will go a long way toward ensuring that the religious entities that distribute federal social services do so without violating the constitution. For example, throughout the order the Obama amendments make it clear that the rules follow the money, closing a loophole that appeared to leave those organizations that received money through "intermediaries" free from the constitutional safeguards or at least at great risk of missing important regulatory guidance. Moving beyond the bare statement that the federal government must comply with the First Amendment, the order now states that the government "must monitor and enforce standards regarding the relationship between religion and government in ways that avoid excessive entanglement between religious bodies and governmental entities." For the first time, the initiative will be susceptible to monitoring by the public as a new requirement was inserted that agencies must post regulations and guidance documents online that reflect the fundamental principles about how programs are run and a list of entities that receive federal financial assistance for provision of social services.

While these provisions should protect against any direct government funding of religious activity, another provision goes further to protect beneficiaries of government-funded social services programs. Each agency that administers such programs must ensure that beneficiaries are given notice of their rights to receive social services from an alternative provider if they have objections to the religious character of the participating organization that provides services. President Obama's changes also include the creation of an intergovernmental working group that will meet periodically to review and evaluate regulations, compose effective guidance documents, and generally ensure that policies government-wide are both uniform and consistent with the fundamental principles of the Faith-based Initiative -- something that has previously not been the case. Taken as a whole, the President's amendments demonstrate that prohibiting federal financial assistance from being used by religious organizations to pursue religious endeavors is not just a suggestion but an essential aspect of the policy.

For some of us, concerns about strong religious liberty protections are grounded not only in respect for the constitution and other laws, but in the religious belief that individual consciences should be protected from interference by government. It should be no surprise that the Baptist Joint Committee will seek greater protections beyond the new improved legal floor that the Obama administration has installed with its changes to the executive order. We will continue to advocate that houses of worship do not enter into financial partnerships with government without forming separate 501(c)(3) organizations designed to comply with the rules in the executive order and as a way to avoid commingling federal dollars with financial gifts from parishioners. We will also advocate for changes to prohibit religious discrimination in federally funded jobs.

Though it was not unexpected, the Obama amendments did not address the contentious issue of whether a religious organization that hires only those who adhere to its religious teachings (which is permissible with private money) can also discriminate in positions funded by the government. This issue was not part of the Advisory Council's charge, and the administration will continue to be criticized for stating that it is addressing the matter on a case-by-case basis, especially without announcing any standard for deciding the matter. The president missed an opportunity to make another important change to the prior administration's policy. The issue will continue to be debated in the context of specific federal spending statutes, which vary widely in their treatment of the issue. Until then, denying someone a federally funded job based upon a religion remains a flawed part of the executive's federal policy.

It is not too much to ask our government to provide social services based on efficiency and effectiveness, as well as in compliance with constitutional principles that protect our fundamental freedoms. President Obama has taken some important steps in that direction and we should continue to press onward.

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