{"id":115,"date":"2010-11-18T07:16:46","date_gmt":"2010-11-18T07:16:46","guid":{"rendered":"http:\/\/blog.beliefnet.com\/religionandpubliclife\/2010\/11\/cleaning-up-the-faith-based-rules.html"},"modified":"2010-11-18T07:16:46","modified_gmt":"2010-11-18T07:16:46","slug":"cleaning-up-the-faith-based-rules","status":"publish","type":"post","link":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/2010\/11\/cleaning-up-the-faith-based-rules.html","title":{"rendered":"Cleaning up the Faith-based Rules"},"content":{"rendered":"

Yesterday the White House put out its long-awaited executive order
\n(reprinted after the jump) on the rules governing faith-based social
\nservice provision, and it’s a solid step forward over the 2002 Bush executive order<\/a>
\nit replaces. What it tracks, pretty closely, are the recommendations of
\nthe task force for reforming the Office of Faith-Based and Neighborhood
\nPartnerships that were presented<\/a> to the president along with the rest of the OFANP Advisory Council’s recommendations back in March.<\/p>\n

The
\nnew order’s most important move is requiring that secular alternatives
\nbe made available to clients who don’t want to go to a faith-based
\norganization (FBO). So if you prefer not to send your child to a mosque
\n(or a synagogue, or a church) for his government-funded after-school
\nprogram, you don’t have to do so. In fact, the Bush White House was not
\nopposed to such a requirement; it was the states that objected. But if
\nwe’re going to tap religious institutions to provide government
\nbenefits, the mandate’s got to be there.<\/p>\n

Much of the order is
\nnon-controversial. I mean, who’s going to object to requiring that
\nfederal programs be run “in accordance with the Establishment Clause and
\nthe Free Exercise Clause”? Or that the process of making awards be
\ntransparent and non-political?<\/p>\n

There will be some church-state
\nseparationists unhappy with allowing FBOs to provide their services in
\nplaces where religious paraphernalia are present. This was a very big
\nissue back in the nineties, but it may be that in the new millennium
\nwe’re less disturbed by the marks and traces of other peoples’ faith;
\nthe task force voted in favor (though not unanimously) of letting this
\nhappen. At the same time, there is a requirement that the actual service
\nprovision be separated by time and place from explicitly religious
\nactivities (though the nature of such separation is not specified).
\nThose eager for religious institutions to establish separate 501 (c) 3’s
\nfor their social services will be disappointed–though it’s not clear
\nwhy a separate non-profit should ipso facto be less religious than its
\nparent organization.  <\/p>\n

If there’s a sleeper provision in the
\norder, it’s the mandate that beneficiaries can’t be discriminated
\nagainst on religious grounds. This sounds anodyne, but U.S. civil rights
\nlaw provides that discrimination is not only a matter of intent but
\nalso of effect. If an Orthodox Jewish provider in Brooklyn advertised
\nonly in Yiddish and closed its doors on the Jewish Sabbath, it’s
\narguable that it could be found to be religiously discriminatory. We’ll
\nhave to wait to see how the rules are applied.  <\/p>\n

The gaping hole
\nin the order is, of course, its silence on whether FBOs can discriminate
\non religious grounds when they hire people to perform government-funded
\nservices. The administration forbade OFANP and its Advisory Council
\nfrom even discussing the issue, kicking it instead over to the Justice
\nDepartment’s Office of Legal Council (whose head the Senate has still
\nnot managed to confirm). Whether OLC ever gets around to pronouncing on
\nthe subject may be doubted. Why wake up a sleeping dog when so many
\nothers are yapping?<\/p>\n


\nTHE WHITE HOUSE
Office of the Press Secretary
For Immediate Release November 17, 2010
EXECUTIVE ORDER
– – – – – – –
FUNDAMENTAL PRINCIPLES AND POLICYMAKING CRITERIA FOR PARTNERSHIPS WITH FAITH-BASED AND OTHER NEIGHBORHOOD ORGANIZATIONS
By
\nthe authority vested in me as President by the Constitution and the
\nlaws of the United States of America, and in order to guide Federal
\nagencies in formulating and developing policies with implications for
\nfaith-based and other neighborhood organizations, to promote compliance
\nwith constitutional and other applicable legal principles, and to
\nstrengthen the capacity of faith-based and other neighborhood
\norganizations to deliver services effectively to those in need, it is
\nhereby ordered:
Section 1. Amendments to Executive Order 13279.
\nExecutive Order 13279 of December 12, 2002 (Equal Protection of the Laws
\nfor Faith-Based and Community Organizations), as amended, is hereby
\nfurther amended:
(a) in section 1, by striking subsection (e), and inserting in lieu thereof the following:
“(e) ‘Specified agency heads’ means:
(i) the Attorney General;
(ii) the Secretary of Agriculture;
(iii) the Secretary of Commerce;
(iv) the Secretary of Labor;
(v) the Secretary of Health and Human Services;
(vi) the Secretary of Housing and Urban Development;
(vii) the Secretary of Education;
(viii) the Secretary of Veterans Affairs;
(ix) the Secretary of Homeland Security;
(x) the Administrator of the Environmental Protection Agency;
(xi) the Administrator of the Small Business Administration;
more
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2
(xii) the Administrator of the United States Agency for International Development; and
(xiii) the Chief Executive Officer of the Corporation for National and Community Service.”;
(b) by striking section 2, and inserting in lieu thereof the following:
“Sec.
\n2. Fundamental Principles. In formulating and implementing policies
\nthat have implications for faith-based and other neighborhood
\norganizations, agencies that administer social service programs or that
\nsupport (including through prime awards or sub-awards) social service
\nprograms with Federal financial assistance shall, to the extent
\npermitted by law, be guided by the following fundamental principles:
(a)
\nFederal financial assistance for social service programs should be
\ndistributed in the most effective and efficient manner possible.
(b)
\nThe Nation’s social service capacity will benefit if all eligible
\norganizations, including faith-based and other neighborhood
\norganizations, are able to compete on an equal footing for Federal
\nfinancial assistance used to support social service programs.
(c) No
\norganization should be discriminated against on the basis of religion or
\nreligious belief in the administration or distribution of Federal
\nfinancial assistance under social service programs.
(d) All
\norganizations that receive Federal financial assistance under social
\nservice programs should be prohibited from discriminating against
\nbeneficiaries or prospective beneficiaries of the social service
\nprograms on the basis of religion or religious belief. Accordingly,
\norganizations, in providing services supported in whole or in part with
\nFederal financial assistance, and in their outreach activities related
\nto such services, should not be allowed to discriminate against current
\nor prospective program beneficiaries on the basis of religion, a
\nreligious belief, a refusal to hold a religious belief, or a refusal to
\nattend or participate in a religious practice.
(e) The Federal
\nGovernment must implement Federal programs in accordance with the
\nEstablishment Clause and the Free Exercise Clause of the First Amendment
\nto the United States Constitution, as well as other applicable law, and
\nmust monitor and enforce standards regarding the relationship between
\nreligion and government in ways that avoid excessive entanglement
\nbetween religious bodies and governmental entities.
(f) Organizations
\nthat engage in explicitly religious activities (including activities
\nthat involve overt religious content such as worship, religious
\ninstruction, or proselytization) must perform such activities and offer
\nsuch services outside of programs that are supported with direct Federal
\nfinancial assistance (including through prime awards or sub-awards),
\nseparately in time or location from any such programs or services
\nsupported with direct Federal financial
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3
assistance, and
\nparticipation in any such explicitly religious activities must be
\nvoluntary for the beneficiaries of the social service program supported
\nwith such Federal financial assistance.
(g) Faith-based organizations
\nshould be eligible to compete for Federal financial assistance used to
\nsupport social service programs and to participate fully in the social
\nservice programs supported with Federal financial assistance without
\nimpairing their independence, autonomy, expression outside the programs
\nin question, or religious character. Accordingly, a faith-based
\norganization that applies for, or participates in, a social service
\nprogram supported with Federal financial assistance may retain its
\nindependence and may continue to carry out its mission, including the
\ndefinition, development, practice, and expression of its religious
\nbeliefs, provided that it does not use direct Federal financial
\nassistance that it receives (including through a prime award or
\nsub-award) to support or engage in any explicitly religious activities
\n(including activities that involve overt religious content such as
\nworship, religious instruction, or proselytization), or in any other
\nmanner prohibited by law. Among other things, faith-based organizations
\nthat receive Federal financial assistance may use their facilities to
\nprovide social services supported with Federal financial assistance,
\nwithout removing or altering religious art, icons, scriptures, or other
\nsymbols from these facilities. In addition, a faith-based organization
\nthat applies for, or participates in, a social service program supported
\nwith Federal financial assistance may retain religious terms in its
\nname, select its board members on a religious basis, and include
\nreligious references in its organization’s mission statements and other
\nchartering or governing documents.
(h) Each agency responsible for
\nadministering or awarding Federal financial assistance for social
\nservice programs shall offer protections for beneficiaries of such
\nprograms pursuant to the following principles:
(i) Referral to an
\nAlternative Provider. If a beneficiary or prospective beneficiary of a
\nsocial service program supported by Federal financial assistance objects
\nto the religious character of an organization that provides services
\nunder the program, that organization shall, within a reasonable time
\nafter the date of the objection, refer the beneficiary to an alternative
\nprovider.
(ii) Agency Responsibilities. Each agency responsible for
\nadministering a social service program or supporting a social service
\nprogram with Federal financial assistance shall establish policies and
\nprocedures designed to ensure that (1) appropriate and timely referrals
\nare made to an alternative provider; (2) all referrals are made in a
\nmanner consistent with all applicable privacy laws and regulations; (3)
\nthe organization subject to subsection (h)(i) notifies the agency of any
\nreferral; (4) such organization has established a process for
\ndetermining whether the beneficiary has contacted the alternative
\nprovider;
more
(OVER)
4
and (5) each beneficiary of a social service program
receives
\nwritten notice of the protections set forth in this subsection prior to
\nenrolling in or receiving services from such program.
(i) To promote
\ntransparency and accountability, agencies that provide Federal
\nfinancial assistance for social service programs shall post online, in
\nan easily accessible manner, regulations, guidance documents, and
\npolicies that reflect or elaborate upon the fundamental principles
\ndescribed in this section. Agencies shall also post online a list of
\nentities that receive Federal financial assistance for provision of
\nsocial service programs, consistent with law and pursuant to guidance
\nset forth in paragraph (c) of section 3 of this order.
(j) Decisions
\nabout awards of Federal financial assistance must be free from political
\ninterference or even the appearance of such interference and must be
\nmade on the basis of merit, not on the basis of the religious
\naffiliation of a recipient organization or lack thereof.”;
(c) by striking section 3, and inserting in lieu thereof the following:
“Sec. 3. Ensuring Uniform Implementation Across the Federal Government.
In
\norder to promote uniformity in agencies’ policies that have
\nimplications for faith-based and other neighborhood organizations and in
\nrelated guidance, and to ensure that those policies and guidance are
\nconsistent with the fundamental principles set forth in section 2 of
\nthis order, there is established an Interagency Working Group on
\nFaith-Based and Other Neighborhood Partnerships (Working Group).
(a)
\nMission and Function of the Working Group. The Working Group shall meet
\nperiodically to review and evaluate existing agency regulations,
\nguidance documents, and policies that have implications for faith-based
\nand other neighborhood organizations. Where appropriate, specified
\nagency heads shall, to the extent permitted by law, amend all such
\nexisting policies of their respective agencies to ensure that they are
\nconsistent with the fundamental principles set forth in section 2 of
\nthis order.
(b) Uniform Agency Implementation. Within 120 days of the
\ndate of this order, the Working Group shall submit a report to the
\nPresident on amendments, changes, or additions that are necessary to
\nensure that regulations and guidance documents associated with the
\ndistribution of Federal financial assistance for social service programs
\nare consistent with the fundamental principles set forth in section 2
\nof this order. The Working Group’s report should include, but not be
\nlimited to, a model set of regulations and guidance documents for
\nagencies to adopt in the following areas:
(i) prohibited uses of
\ndirect Federal financial assistance and separation requirements; (ii)
\nprotections for religious identity; (iii) the distinction between
\n“direct” and “indirect” Federal financial assistance; (iv) protections
\nfor beneficiaries of social service programs; (v) transparency
\nrequirements,
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5
consistent with and in furtherance of
\nexisting open government initiatives; (vi) obligations of
\nnongovernmental and governmental intermediaries; (vii) instructions for
\npeer reviewers and those who recruit peer reviewers; and (viii) training
\non these matters for government employees and for Federal, State, and
\nlocal governmental and nongovernmental organizations that receive
\nFederal financial assistance under social service programs. In
\ndeveloping this report and in reviewing agency regulations and guidance
\nfor consistency with section 2 of this order, the Working Group shall
\nconsult the March 2010 report and recommendations prepared by the
\nPresident’s Advisory Council on Faith-Based and Neighborhood
\nPartnerships on the topic of reforming the Office of Faith-Based and
\nNeighborhood Partnerships.
(c) Guidance. The Director of the Office
\nof Management and Budget (OMB), following receipt of a copy of the
\nreport of the Working Group, and in coordination with the Department of
\nJustice, shall issue guidance to agencies on the implementation of this
\norder, including in particular subsections 2(h)-(j).
(d) Membership
\nof the Working Group. The Director of the Office of Faith-Based and
\nNeighborhood Partnerships and a senior official from the OMB designated
\nby the Director of the OMB shall serve as the Co-Chairs of the Working
\nGroup. The Co-Chairs shall convene regular meetings of the Working
\nGroup, determine its agenda, and direct its work. In addition to the
\nCo-Chairs, the Working Group shall consist of a senior official with
\nknowledge of policies that have implications for faith-based and other
\nneighborhood organizations from the following agencies and offices:
(i) the Department of State;
(ii) the Department of Justice;
(iii) the Department of the Interior;
(iv) the Department of Agriculture;
(v) the Department of Commerce;
(vi) the Department of Labor;
(vii) the Department of Health and Human Services;
(viii) the Department of Housing and Urban Development;
(ix) the Department of Education;
(x) the Department of Veterans Affairs;
(xi) the Department of Homeland Security;
(xii) the Environmental Protection Agency;
(xiii) the Small Business Administration;
more
(OVER)
6
(xiv) the United States Agency for International Development;
(xv) the Corporation for National and Community Service; and
(xvi) other agencies and offices as the President, from time to time, may designate.
(e)
\nAdministration of the Initiative. The Department of Health and Human
\nServices shall provide funding and administrative support for the
\nWorking Group to the extent permitted by law and within existing
\nappropriations.”; and
(d) by striking in the title, preamble, and section 1(c), “community” and inserting in lieu thereof “other neighborhood”.
Sec. 2. General Provisions.
(a)
\nThis order amends the requirements contained in Executive Order 13279.
\nThis order supplements, but does not supersede, the requirements
\ncontained in Executive Orders 13198 and 13199 of January 29, 2001, and
\nExecutive Order 13498 of February 5, 2009.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the OMB relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d)
\nThis order is not intended to, and does not, create any right or
\nbenefit, substantive or procedural, enforceable at law or in equity by
\nany party against the United States, its departments, agencies, or
\nentities, its officers, employees, or agents, or any other person.
BARACK OBAMA
THE WHITE HOUSE,
November 17, 2010.
# # #<\/p>\n","protected":false},"excerpt":{"rendered":"

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After teaching at Harvard in the Department of History and Literature for three years, he became editor of the Boston Review. In 1987 he joined the staff of the Atlanta Journal-Constitution, where he worked variously as a reporter, editorial writer and columnist. In 1996 he became the founding director of the Leonard E. Greenberg Center for the Study of Religion in Public Life at Trinity College and in 1998 founding editor of Religion in the News, a magazine published by the Center that examines how the news media handle religious subject matter. In 2005, he was named director of the Trinity College Program on Public Values, comprising both the Greenberg Center and a new Institute for the Study of Secularism in Society and Culture directed by Barry Kosmin. In 2007, he became Professor of Religion in Public Life at the College. Professor Silk is the author of Spiritual Politics: Religion and America Since World War II and Unsecular Media: Making News of Religion in America. He is co-editor of Religion by Region, an eight-volume series on religion and public life in the United States, and co-author of The American Establishment, Making Capitalism Work, and One Nation Divisible: How Regional Religious Differences Shape American Politics. In 2007 he inaugurated Spiritual Politics, a blog on religion and American political culture.","url":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/author\/msilk"}]}},"_links":{"self":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/posts\/115","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/users\/222"}],"replies":[{"embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/comments?post=115"}],"version-history":[{"count":0,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/posts\/115\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/media?parent=115"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/categories?post=115"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/tags?post=115"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}