Proposed Rules on Faith-Based Social Services
In 2009, President Obama asked the Advisory Council for Faith-Based and Neighborhood Partnerships
(Advisory Council) to make recommendations for strengthening the constitutional and legal footing of social
service partnerships the government forms with faith-based nongovernmental social service providers. The
Advisory Council issued its recommendations in March 2010. In response to the Advisory Council’s
recommendations, President Obama signed Executive Order 13559.
The Executive Order promulgated a set of “fundamental principles” for agencies to follow in formulating and
implementing policies that have implications for faith-based organizations that administer social service
programs or that support (including through prime awards or sub-awards) social service programs with Federal
Specifically, the Executive Order provided that such faith-based organizations should be prohibited from
discriminating against beneficiaries or prospective beneficiaries of the social service programs on the basis of
religion or religious belief.
Additionally, organizations that engage in explicitly religious activities must perform such activities separately
from its services that are supported with direct Federal financial assistance. For example, if a faith-based
provider offers a Bible study as well as a federally supported job training program, the Bible study must be
privately funded and adequately separated in time or location from the job training program.
The Executive Order also provided that faith-based organizations should be eligible to compete for Federal
financial assistance and to participate fully in the social service programs without impairing their religious
character. For example, religious providers should be allowed to use religious terms in their organizational
names and to include religious references in mission statements and in other organizational documents.
It also provided that if a beneficiary or prospective beneficiary objects to the religious character of an
organization that provides services under the program, then that organization shall, within a reasonable time
after the date of the objection, refer the beneficiary to an alternative provider.
On August 05, 2015, nine federal agencies issued proposed rules to accomplish some of the aims of President
Obama’s Executive Order 13559.
The proposed rules, among other things, provided definitions for the terms “direct Federal financial assistance”
and “indirect Federal financial assistance” so that faith-based organizations may understand that certain
religious liberty protections are triggered under the updated regulations only if a faith-based organization
receives direct Federal financial assistance.
The rules define the term "explicitly religious activities” and reiterate that explicitly religious activities must be
performed separately from services that are supported with direct Federal financial assistance.
The rules also require that faith-based organizations supported with direct Federal financial assistance provide
beneficiaries with a written notice informing them of a variety of religious liberty protections, including steps
that must be taken to refer the beneficiary to an alternative provider, if the beneficiary requests such a provider.
Some of the rules also provide a resolution process so that beneficiaries can file complaints about social service
providers that fail to comply with applicable rules.
The agencies received comments on the proposed rules until October 6, 2015. Once those comments have been
analyzed, the final rules will be issued. Separate from the rulemaking process, different agencies have stated
that they are continuing to work toward other modifications to their guidance, practices and communications
strategies consistent with Executive Order 13559.
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