Is a rule designed to end discrimination against religious groups serving the general public automatically discriminatory against people who don’t belong to those religious groups?
That is the question underlying the controversy surrounding President Donald Trump’s executive order issued on Monday to remove certain restrictions on religious organizations that receive federal money to provide social services.
The Obama-era restrictions require faith-based groups to tell clients about their religious affiliation and to refer them to a different program upon request. It also tells religious groups to give clients written notice about their rights, including that they can’t be forced to participate in religious activities, according to the Associated Press.
A statement from the Department of Justice on behalf of nine federal agencies affected by the order said: “This rule ensures that religious and non-religious organizations are treated equally in DOJ-supported programs, and it clarifies that religious organizations do not lose their legal protections and rights just because they participate in federal programs and activities.”
It is framed in affirmative language; it is for religion, not against anybody. There is no mention whatsoever about granting these groups any right of discrimination in hiring personnel or in the distribution of funds.
Yet, that is what opponents of the measure claim — that it creates a loophole for the faith-based to deny federal help to those who aren’t enrolled in their base.
“This is taxpayer-funded discrimination in the name of religion,” the ACLU tweeted last year when the measure was being proposed. And for the punctuation-challenged, it added, “Period.”
While grateful for the move to expand opportunities for religious organizations to participate in federally funded programs, Orthodox advocacy groups shared some of the concerns over rule changes. As a minority religion, Jews could theoretically be disadvantaged by religious groups getting too much leeway in keeping their level of affiliation with social services vague and dropping a requirement to refer to secular providers.
Jewish groups hope that these concerns will eventually be addressed, but they certainly do not share the sentiments of those looking to paint efforts to open doors for religious groups to provide valuable services with an undiscerningly negative brush.
Such was the tilt of an article in USA Today that claimed that “the executive order repeals Obama administration rules limiting the ability of groups getting federal funds to preach to those they serve.” Presumably, this is a reference to the clause saying that religious activities must be kept separate in time and location from the services provided with federal funds.
But USA Today’s ambiguity makes it sound like a much broader restriction. The First Amendment guarantees “the free exercise of religion,” which means the right to preach to anybody who will listen, whether or not they receive material benefits from the preacher.
Even Obama didn’t attempt to infringe directly on religious freedom in his order. All it meant was that they couldn’t give out paid-for-by-the-government food parcels in the chapel.
It may be, though, that like the “right of privacy” and other rights that liberal justices have located in the unwritten “penumbras” of the Constitution, they perceive discrimination in the penumbras of the Trump executive order.
Will the order allow religious groups to deny federally-funded assistance to someone who refuses to join their congregation, or refuses to disavow a lifestyle anathema to them? The order could be interpreted that way, and is being interpreted that way, regardless of its stated intent.
That intent includes clearing away obstacles to getting help to those who need it. For when the access of faith-based groups is closed off or curtailed, those who need help are hurt, while it is doubtful that separation of church and state has really been served.
In an opinion piece in The Wall Street Journal, Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, wrote:
“It’s no secret what happens when faith-based providers get pushed out. A year after Boston stopped working with them, the percentage of youth in foster care who left the Massachusetts system because they aged out rose more than 50%. With fewer available homes to place children in, aging out is one of the worst outcomes as it increases a child’s likelihood of homelessness and unemployment. The rate still has not returned to pre-2006 levels. In 2011, Illinois passed a law discontinuing its partnerships with faith-based agencies — then lost more than 1,500 foster homes between 2012 and 2017. All this when the world desperately needs more providers.”
But a measure that to some people is blandly anti-discriminatory is to others blatantly discriminatory. What some see as an action aimed at protecting the freedom of religion at a time when religion is manifestly under attack, others see as a gaping loophole, diabolically crafted to exclude iconoclasts and the oppressed — a slippery slope leading to theocracy.
It is part of the ongoing debate, increasingly inflamed by social trends never anticipated by the framers of the Constitution, over the principle of separation of church and state. As such, President Trump’s executive order will by no means end the conversation. It will be taken up immediately after the inauguration in January when winds on the debate will likely shift in the opposite direction.