# Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-27084 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 17, 2020 - **Citation:** 85 FR 82037 ## Text DEPARTMENT OF EDUCATION 2 CFR Part 3474 34 CFR Parts 75 and 76 [ED-2019-OPE-0080] RIN 1840-AD 45 DEPARTMENT OF HOMELAND SECURITY 6 CFR Part 19 [DHS-2019-0049] RIN 1601-AA93 DEPARTMENT OF AGRICULTURE 7 CFR Part 16 [USDA-2020-0009] RIN 0510-AA008 AGENCY FOR INTERNATIONAL DEVELOPMENT 22 CFR Part 205 [AID-2020-0001] RIN 0412-AA99 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Parts 5, 92, and 578 [HUD-2020-0017] RIN 2501-AD91 DEPARTMENT OF JUSTICE 28 CFR Part 38 [DOJ-OAG-2020-0001; A.G. Order No. 4925-2020] RIN 1105-AB58 DEPARTMENT OF LABOR 29 CFR Part 2 [DOL-2019-0006] RIN 1291-AA41 DEPARTMENT OF VETERANS AFFAIRS 38 CFR Parts 50, 61, and 62 [VA-2020-VACO-0003] RIN 2900-AQ75 DEPARTMENT OF HEALTH AND HUMAN SERVICES Office of the Secretary 45 CFR Part 87 Administration for Children and Families 45 CFR Part 1050 [HHS-OS-2020-0001] RIN 0991-AC13 Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities AGENCY: Department of Education, Department of Homeland Security, Department of Agriculture, Agency for International Development, Department of Housing and Urban Development, Department of Justice, Department of Labor, Department of Veterans Affairs, Department of Health and Human Services. ACTION: Final rule. SUMMARY: This rule amends the regulations of the agencies listed above (“the Agencies”) to implement Executive Order 13831 of May 3, 2018 (Establishment of a White House Faith and Opportunity Initiative). This rule provides clarity about the rights and obligations of faith-based organizations participating in the Agencies' Federal financial assistance programs and activities. This rulemaking is intended to ensure that the Agencies' Federal financial assistance programs and activities are implemented in a manner consistent with the requirements of Federal law, including the First Amendment to the Constitution and the Religious Freedom Restoration Act. DATES: This final rule becomes effective on January 19, 2021. FOR FURTHER INFORMATION CONTACT: For information regarding each Agency's implementation of these final regulations, the contact information for that Agency follows. If you use a telecommunications device for the deaf (“TDD”) or a text telephone (“TTY”), call the Federal Relay Service (“FRS”), toll free, at 800-877-8339: • Department of Education: Lynn Mahaffie, Assistant General Counsel, Division of Regulatory Services, Office of the General Counsel, 202-453-7862, Lynn.Mahaffie@ed.gov. • Department of Homeland Security: Peter Mina, Deputy Officer for Programs and Compliance, Office for Civil Rights and Civil Liberties, 202-401-1474 (phone), 202-401-0470 (TTY). • Department of Agriculture: Emily Tasman, Assistant General Counsel, Office of the General Counsel, 202-720-3351, emily.tasman@usda.gov. • Agency for International Development: Brian Klotz, Deputy Director, Center for Faith & Opportunity Initiatives, 202-712-0217, bklotz@usaid.gov . • Department of Housing and Urban Development: Richard Youngblood, Director, Center for Faith-Based and Neighborhood Partnerships, 202-402-5958. • Department of Justice: Michael L. Alston, Director, Office for Civil Rights, Office of Justice Programs, 202-514-2000, EO_13831@ojp.usdoj.gov. • Department of Labor: Mark Zelden, Director, Centers for Faith & Opportunity Initiatives, 202-693-6017, Zelden.Mark.A@dol.gov. • Department of Veterans Affairs: Conrad Washington, Director, Center for Faith and Opportunity Initiatives, Office of Public and Intergovernmental Affairs, 202-461-7865. • Department of Health and Human Services: Shannon O. Royce, Director, Center for Faith and Opportunity Initiatives, 202-260-6501. SUPPLEMENTARY INFORMATION: I. Background Shortly after taking office in 2001, President George W. Bush signed Executive Order 13199, 66 FR 8499 (Jan. 29, 2001) (Establishment of White House Office of Faith-Based and Community Initiatives). That Executive Order sought to ensure that “private and charitable groups, including religious ones, . . . have the fullest opportunity permitted by law to compete on a level playing field” in the delivery of social services. To do so, it created an office within the White House, the White House Office of Faith-Based and Community Initiatives, with primary responsibility to “establish policies, priorities, and objectives for the Federal Government's comprehensive effort to enlist, equip, enable, empower, and expand the work of faith-based and other community organizations to the extent permitted by law.” On December 12, 2002, President Bush signed Executive Order 13279, 67 FR 77141 (Dec. 12, 2002) (Equal Protection of the Laws for Faith-Based and Community Organizations). Executive Order 13279 set forth the principles and policymaking criteria to guide Federal agencies in formulating and implementing policies with implications for faith-based organizations and other community organizations, to ensure equal protection of the laws for faith-based and community organizations, and to expand opportunities for, and strengthen the capacity of, faith-based and other community organizations to meet social needs in America's communities. In addition, Executive Order 13279 directed specified agency heads to review and evaluate existing policies that had implications for faith-based and community organizations relating to their eligibility for Federal financial assistance for social service programs and, where appropriate, to implement new policies that were consistent with and necessary to further the fundamental principles and policymaking criteria articulated in the Executive Order. In 2004, the Department of Veterans Affairs (“VA”) promulgated regulations at 38 CFR part 61 consistent with Executive Order 13279. VA Homeless Providers Grant and Per Diem Program; Religious Organizations, 69 FR 31883 (June 8, 2004). The Department of Education similarly promulgated regulations at 34 CFR parts 74, 75, 76, and 80. Participation in Education Department Programs by Religious Organizations; Providing for Equal Treatment of All Education Program Participants, 69 FR 31708 (June 4, 2004). In 2003 and 2004, the Department of Housing and Urban Development (“HUD”) promulgated three final rules to implement Executive Order 13279. See Providing for Equal Treatment of All Program Participants, 69 FR 62164 (Oct. 22, 2004); Equal Participation of Faith-Based Organizations, 69 FR 41712 (July 9, 2004); Participation in HUD's Native American Programs by Religious Organizations; Participation in HUD Programs by Faith-Based Organizations; Providing for Equal Treatment of all HUD Program Participants, 68 FR 56396 (Sept. 30, 2003). In 2004, the Department of Justice (“DOJ”), Department of Agriculture (“USDA”), Department of Labor (“DOL”), Department of Health and Human Services (“HHS”), and Agency for International Development (“USAID”) issued regulations through notice-and-comment rulemaking implementing Executive Order 13279. See Participation in Justice Department Programs by Religious Organizations; Providing for Equal Treatment of All Justice Department Program Participants, 69 FR 2832 (Jan. 21, 2004); Equal Opportunity for Religious Organizations, 69 FR 41375 (July 9, 2004); Equal Treatment in Department of Labor Programs for Faith-Based and Community Organizations; Protection of Religious Liberty of Department of Labor Social Service Providers and Beneficiaries, 69 FR 41882 (July 12, 2004); Participation in Department of Health and Human Services Programs by Religious Organizations; Providing for Equal Treatment of All Department of Health and Human Services Program Participants, 69 FR 42586 (July 16, 2004); Participation by Religious Organizations in USAID Programs, 69 FR 61716 (Oct. 20, 2004). DOL subsequently issued guidance detailing the process for recipients of financial assistance to obtain exemptions from religious nondiscrimination requirements under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. 2000bb through 2000bb-4. 1 DHS issued a Notice of Proposed Rulemaking (“NPRM” or “proposed rule”) in 2008, see Nondiscrimination in Matters Pertaining to Faith-Based Organizations, 73 FR 2187 (Jan. 14, 2008); however, DHS did not issue a final rule related to the participation of faith-based organizations in its programs prior to 2016. 1 See DOL, Guidance Regarding Federal Grants and Executive Order 13798, h ttp s ://www.dol.gov/agencies/oasam/grants/religious-freedom-restoration-act. President Obama maintained President Bush's program but modified it in certain respects. Shortly after taking office, President Obama signed Executive Order 13498, 74 FR 6533 (Feb. 5, 2009) (Amendments to Executive Order 13199 and Establishment of the President's Advisory Council for Faith-Based and Neighborhood Partnerships). This Executive Order changed the name of the White House Office of Faith-Based and Community Initiatives to the White House Office of Faith-Based and Neighborhood Partnerships, and it created the President's Advisory Council on Faith-Based and Neighborhood Partnerships, which subsequently submitted recommendations regarding the work of the Office. On November 17, 2010, President Obama signed Executive Order 13559, 75 FR 71319 (Nov. 17, 2010) (Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations). Executive Order 13559 made various changes to Executive Order 13279, which included: Making minor and substantive textual changes to the fundamental principles; adding a provision requiring that any religious social service provider refer potential beneficiaries to an alternative provider if the beneficiaries objected to the first provider's religious character; adding a provision requiring that the faith-based provider give notice of potential referral to potential beneficiaries; and adding a provision that awards must be free of political interference and not be based on religious affiliation or lack thereof. An interagency working group was tasked with developing model regulatory changes to implement Executive Order 13279, as amended by Executive Order 13559, including provisions that clarified the prohibited uses of direct financial assistance, allowed religious social service providers to maintain their religious identities, and distinguished between direct and indirect assistance. These efforts eventually resulted in DHS's promulgating regulations and the other Agencies promulgating amendments to their regulations. In April 2016, the Agencies promulgated a joint final rule through notice-and-comment rulemaking to ensure consistency with Executive Order 13279, as amended by Executive Order 13559. See Federal Agency Final Regulations Implementing Executive Order 13559: Fundamental Principles and Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations, 81 FR 19355 (April 4, 2016). The revised regulations defined “indirect Federal financial assistance” in a way that sought to indicate that the aid must flow to a beneficiary from a religious provider only through the genuine and independent choice of the beneficiary. See, e.g., 81 FR at 19381 (describing “indirect” assistance programs as those in which the benefits under the program are provided as a result of a “genuine and independent choice”); id. at 19406-07 (defining “indirect Federal financial assistance” in terms of whether, inter alia, the “organization receives the assistance as the result of the decision of the beneficiary, not a decision of the government”). The rules also provided that aid would be considered “indirect” only if beneficiaries had at least one secular option as an alternative to the faith-based provider. See id. at 19407. Further, the rules not only required that faith-based providers give the notice of the right to an alternative provider specified in Executive Order 13559, but also required faith-based providers, but not other providers, to give written notice to beneficiaries and potential beneficiaries of programs funded with direct Federal financial assistance of various protections, including nondiscrimination based on religion, the requirement that participation in any religious activities must be voluntary and that they must be provided separately from the federally funded activity, and that beneficiaries may report violations. E.g., id. at 19423. President Trump has given new direction to the program established by President Bush and continued by President Obama. On May 4, 2017, President Trump issued Executive Order 13798, 82 FR 21675 (May 4, 2017) (Promoting Free Speech and Religious Liberty). Executive Order 13798 states that “Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.” It directed the Attorney General to “issue guidance interpreting religious liberty protections in Federal law.” Pursuant to this instruction, the Attorney General subsequently published guidance in the Federal Register . See Federal Law Protections for Religious Liberty, 82 FR 49668 (Oct. 26, 2017) (“the Attorney General's Memorandum”). The Attorney General's Memorandum emphasizes that individuals and organizations do not give up religious liberty protections by providing government-funded social services, and that “government may not exclude religious organizations as such from secular aid programs . . . when the aid is not being used for explicitly religious activities such as worship or proselytization.” Id. at 49669. On May 3, 2018, President Trump signed Executive Order 13831, 83 FR 20715 (May 3, 2018) (Establishment of a White House Faith and Opportunity Initiative), amending Executive Order 13279, as amended by Executive Order 13559, and other related Executive Orders. Among other things, Executive Order 13831 changed the name of the “White House Office of Faith-Based and Neighborhood Partnerships” as established in Executive Order 13498, to the “White House Faith and Opportunity Initiative”; changed the way that the initiative is to operate; directed departments and agencies with “Centers for Faith-Based and Community Initiatives” to change those names to “Centers for Faith and Opportunity Initiatives”; and ordered that departments and agencies without a Center for Faith and Opportunity Initiatives designate a “Liaison for Faith and Opportunity Initiatives.” Executive Order 13831 also eliminated the alternative provider referral requirement and requirement of notice thereof in Executive Order 13559 described above. On January 17, 2020, DHS, USDA, USAID, DOJ, DOL, VA, HHS, and ED issued NPRMs with proposed regulatory amendments to implement Executive Order 13831 and conform more closely to the Supreme Court's current First Amendment jurisprudence; relevant Federal statutes such as RFRA; Executive Order 13279, as amended by Executive Orders 13559 and 13831; and the Attorney General's Memorandum. Equal Participation of Faith-Based Organizations in DHS's Programs and Activities: Implementation of Executive Order 13831, 85 FR 2889 (Jan. 17, 2020); Equal Opportunity for Religious Organizations in U.S. Department of Agriculture Programs: Implementation of Executive Order 13831, 85 FR 2897 (Jan. 17, 2020); Equal Participation of Faith-Based Organizations in USAID's Programs and Activities: Implementation of Executive Order 13831, 85 FR 2916 (Jan. 17, 2020); Equal Participation of Faith-Based Organizations in Department of Justice's Programs and Activities: Implementation of Executive Order 13831, 85 FR 2921 (Jan. 17, 2020); Equal Participation of Faith-Based Organizations in the Department of Labor's Programs and Activities: Implementation of Executive Order 13831, 85 FR 2929 (Jan. 17, 2020); Equal Participation of Faith-Based Organizations in Veterans Affairs Programs: Implementation of Executive Order 13831, 85 FR 2938 (Jan. 17, 2020); Ensuring Equal Treatment of Faith-Based Organizations, 85 FR 2974 (Jan. 17, 2020); Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Direct Grant Programs, State-Administered Formula Grant Programs, Developing Hispanic-Serving Institutions Program, and Strengthening Institutions Program, 85 FR 3190 (Jan. 17, 2020). On February 13, 2020, HUD issued a parallel NPRM. Equal Participation of Faith-Based Organizations in HUD Programs and Activities: Implementation of Executive Order 13831, 85 FR 8215 (Feb. 13, 2020). These NPRMs proposed to do the following: • Remove the notice-and-referral requirements that were required of faith-based organizations but were not required of other organizations; • Require the Agencies' notices or announcements of award opportunities and notices of awards or contracts to include language clarifying the rights and obligations of faith-based organizations that apply for and receive Federal funding. ED, DHS, USDA, DOJ, DOL, HUD, VA, and HHS proposed specific language in these notices to clarify that, among other things, a faith-based organization may apply for awards on the same basis as any other organization, the Agencies will not discriminate in selection on the basis of the organization's religious exercise or affiliation, a participating faith-based organization retains its independence and may carry out its mission consistent with—and may be able to seek an accommodation under—religious freedom protections in Federal law, and a faith-based organization may not discriminate against beneficiaries on certain religious bases; • Clarify that accommodations are available to faith-based organizations under existing Federal law and directly reference the definition of “religious exercise” from RFRA; • Update the prohibitions against the Agencies (and, for some Agencies, their intermediaries) discriminating in selection and disqualifying an organization, so as to prohibit such conduct on the basis of religious exercise and affiliation; • Update the definition of “indirect Federal financial assistance” to align more closely with the Supreme Court's decision in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), by removing the requirement that beneficiaries have at least one secular option; • Clarify the existing provision that a faith-based organization participating in an indirect Federal financial assistance program or activity need not modify its program to accommodate a beneficiary, so that it expressly states that such an organization need not modify its policies that require attendance in “all activities that are fundamental to the program;” • Clarify that faith-based organizations participating in Agency-funded programs shall retain their autonomy, right of expression, religious character, and independence; • Clarify that none of the guidance documents that the Agencies or their intermediaries use in administering the Agencies' financial assistance shall require faith-based organizations to provide assurances or notices where similar requirements are not imposed on secular organizations, and that any restrictions on the use of grant funds shall apply equally to faith-based and secular organizations; • Clarify that faith-based organizations need not remove, conceal, or alter any religious symbols or displays; • Clarify the standard for permissible discrimination on the basis of religion with respect to employment or board membership, as relevant; • Clarify the methods that can be used to demonstrate nonprofit status; • Update the terminology to refer to “faith-based organizations,” not “religious organizations;” and • Clarify that the Agencies and their intermediaries cannot advantage or disadvantage faith-based organizations affiliated with historic or well-established religions or sects in comparison with other religions or sects. These final regulations are effective on January 19, 2021. In light of the public comments and as explained further below, the Agencies are making the following changes from the NPRMs: • Update the prohibitions against the Agencies (and, for some Agencies, their intermediaries) discriminating in selecting and disqualifying an organization, so as to prohibit such conduct on the basis of religious character and affiliation, and add such a prohibition against discrimination on the basis of religious exercise with additional language based on the applicable Free Exercise Clause and RFRA standards; and • Update the notices in the appendices for ED, DHS, USDA, DOJ, DOL, HUD, VA, and HHS to reflect that these prohibitions apply to discrimination on the basis of religious character, affiliation, or exercise. These Agencies are also updating such notices to indicate that the listed Federal laws provide religious freedom “and conscience” protections. Unless otherwise specified in the discussion below, these final regulations amend existing regulations or establish new regulations to do the following, consistent with the NPRMs: • Remove the notice-and-referral requirements that were required of faith-based organizations but were not required of other organizations; • Require the Agencies' notices or announcements of award opportunities and notices of awards or contracts to include language clarifying the rights and obligations of faith-based organizations that apply for and receive Federal funding. ED, DHS, USDA, DOJ, DOL, HUD, VA, and HHS are also including specific language in these notices to clarify that, among other things, a faith-based organization may apply for awards on the same basis as any other organization; a participating faith-based organization retains its independence and may carry out its mission consistent with—and may be able to seek an accommodation under—religious freedom (and conscience) protections in Federal law; 2 and a faith-based organization may not discriminate against beneficiaries on certain religious bases; 2 In this rulemaking, the word “accommodation” refers both to provisions of relief from the burdens that a generally applicable law might impose on religious exercise, such as RFRA and the Religious Land Use and Institutionalized Persons Act (“RLUIPA,” 42 U.S.C. 2000cc et seq. ), and to protections of conscience more generally, such as the Coats-Snowe Amendment (42 U.S.C. 238n), the Weldon Amendment (a rider in HHS's annual appropriation, see, e.g., Further Consolidated Appropriations Act, 2020, Pub. L. 116-94, div. A, sec. 507(d), 133 Stat. 2534, 2607 (Dec. 20, 2019)), the Church Amendments (42 U.S.C. 300a-7), and 42 U.S.C. 18113. • Clarify that accommodations are available under existing Federal law and directly reference the definition of “religious exercise” from RFRA; • Update the definition of “indirect Federal financial assistance” to align more closely with the Supreme Court's decision in Zelman, 536 U.S. at 639, by removing the requirement that beneficiaries have at least one secular option; • Clarify the existing provision that a faith-based organization participating in an indirect Federal financial assistance program or activity need not modify its program to accommodate a beneficiary, so that it expressly states that such an organization need not modify its policies that require attendance in “all activities that are fundamental to the program;” • Clarify that faith-based organizations participating in Agency-funded programs shall retain their autonomy, right of expression, religious character, and independence; • Clarify that none of the guidance documents that the Agencies or their intermediaries use in administering the Agencies' financial assistance shall require faith-based organizations to provide assurances or notices where similar requirements are not imposed on secular organizations, and that any restrictions on the use of grant funds shall apply equally to faith-based and secular organizations; • Clarify that faith-based organizations need not remove, conceal, or alter any religious symbols or displays; • Clarify the standard for permissible discrimination on the basis of religion with respect to employment or board membership, as relevant; • Clarify the methods that can be used to demonstrate nonprofit status; • Update the terminology to refer to “faith-based organizations,” not “religious organizations;” and • Clarify that the Agencies and their intermediaries cannot advantage or disadvantage faith-based organizations affiliated with historic or well-established religions or sects in comparison with other religions or sects. Additionally, in its NPRM, ED proposed to add severability clauses to each part of its regulations, and it is finalizing those severability clauses. USDA, DOL, DOJ, and HHS are also adding a severability provision indicating that, to the extent that any provision of this regulation is declared invalid by a court of competent jurisdiction, the Agency intends for all other provisions that are capable of operating in the absence of the specific provision that has been invalidated to remain in effect. They are making this addition because they conclude that each of the regulations discussed in this preamble would serve one or more important, related, but distinct purposes, as demonstrated by the extensive discussion of each provision below and in the USDA, DOL, DOJ, and HHS NPRMs. This provision is not a substantive addition, so the Agencies do not believe that notice and comment is required. Even if notice and comment were required, the absence of notice and comment for this provision would not be prejudicial, as commenters received an opportunity to provide their views on all substantive aspects of the rule. Hence, although the issue of severability was not raised in the USDA, DOL, DOJ, or HHS NPRMs, commenters were able to evaluate the practical impact of each facet of the proposed rules, and finalizing the proposed rules with a severability provision will not meaningfully alter the rules' impact on commenters. The Agencies accordingly have concluded that they will not re-notice the rules to raise the issue of severability. See First Am. Discount Corp. v. CFTC, 222 F.3d 1008, 1015 (D.C. Cir. 2000) (declining to decide whether additional notice was required where petitioner suffered no prejudice). The Agencies received over 95,000 comments in response to their NPRMs. The major cross-cutting issues raised in those comments are discussed in the Joint Preamble (Part II). Many commenters filed similar or identical comments with some or all of the Agencies. Thus, unless otherwise noted in response to a particular comment, the responses in this joint preamble are adopted by all Agencies, regardless of whether a particular Agency received a particular comment. Within each discussion of a category of comments, there are subheadings entitled “Summary of Comments,” “Response,” “Changes,” and “Affected Regulations.” Under the “Changes” subheading, the Agencies describe the types of changes, if any, that they are making to the proposed rules as a result of the comments. Under the “Affected Regulations” subheading, the Agencies list the actual sections of the regulations that they have changed. Comments that raised issues specific to an Agency or that required an explanation of how a cross-cutting issue affects an Agency are addressed in the Agency-Specific Preambles (Part III). Following is the organization of this rulemaking: I. Background II. Joint Preamble A. General Support and Opposition B. Regulatory History and Legal Background 1. Executive Orders 13199 and 13279 2. Executive Orders 13498 and 13559 3. Executive Orders 13798 and 13831 and the Attorney General's Memorandum C. Notice-and-Referral Requirements 1. Beneficiary Rights a. Notice and Referral to Alternative Provider b. Other Notices 2. Beneficiary Harms a. In General b. Specific Examples, Studies, and Hypotheticals 3. Tension With the Free Exercise Clause and RFRA a. Unequal Burdens b. Substantial Burdens c. Compelling Interests d. Least Restrictive Means and Appropriate Remedy e. Third-Party Harms D. Indirect Federal Financial Assistance 1. Definition of “Indirect Federal Financial Assistance” a. Consistency With Zelman v. Simmons-Harris b. Rights of Beneficiaries and Providers c. Harms to Beneficiaries and Providers 2. Required Attendance at Religious Activities a. Establishment Clause b. Clarification E. Accommodations for Faith-Based Organizations F. Discrimination on the Basis of Religious Character or Exercise 1. “Religious Character” 2. “Religious Exercise” a. Scope of “Religious Exercise” b. Clarified Basis for Protecting “Religious Exercise” G. Rights of Faith-Based Organizations 1. Religious Symbols 2. Nonprofit Status 3. Notice to Faith-Based Organizations 4. Same Requirements for Faith-Based and Secular Organizations 5. Religious Autonomy and Expression H. Employment and Board Membership 1. Preserving the Section 702 Exemption 2. Acceptance of or Adherence to Religious Tenets a. Employment b. Board Membership I. Conflicts With Other Federal Laws, Programs, and Initiatives J. Procedural Requirements 1. Comment Period 2. Arbitrariness and Capriciousness K. Regulatory Certifications 1. Regulatory Impact Analysis (Executive Orders 12866 and 13563) 2. Economic Significance Determination (Executive Order 12866) 3. Deregulatory Action Determination (Executive Order 13771) 4. Federalism (Executive Order 13132) 5. Unfunded Mandates Reform Act III. Agency-Specific Preambles A. Department of Education 1. Comments in Support 2. Comments in Opposition a. Concerns Regarding Discrimination and Impact on Programs b. Concerns Regarding Appropriate Use of Taxpayer Dollars c. Concerns Regarding Potential for Religious Compulsion d. Concerns Regarding Modifications e. Severability Clauses B. Department of Homeland Security C. Department of Agriculture D. Agency for International Development 1. Notice and Alternative Provider Requirements 2. “Religious Organizations” to “Faith-Based Organizations” 3. Reasonable Accommodations 4. Religious Character and Religious Exercise 5. Exemption From Title VII Prohibitions for Qualifying Organizations Hiring Based on Acceptance of, or Adherence to, Religious Tenets 6. Assurances from Religious Organizations With Sincerely Held Religious Beliefs 7. Findings and Certifications a. Regulatory Flexibility Act b. Paperwork Burden E. Department of Housing and Urban Development 1. Other Conflicting Laws 2. Conflicting Agency Programs and Policies 3. Procedural Issues a. Comment Period b. Rulemaking Authority c. RIA/Administrative Sections F. Department of Justice G. Department of Labor 1. Beneficiary Harms 2. Notice Requirement 3. Deregulatory Action Determination (Executive Order 13771) 4. General Comments H. Department of Veterans Affairs I. Department of Health and Human Services 1. Nondirective Mandate 2. Certain Provisions of the ACA 3. Notice Requirements in Other Department Regulations 4. Medical Ethics 5. Discrimination Against Women, Persons With Disabilities, Low-Income Persons, and LGBT Persons IV. General Regulatory Certifications A. Regulatory Planning and Review (Executive Order 12866); Improving Regulation and Regulatory Review (Executive Order 13563) 1. Costs 2. Cost Savings 3. Benefits B. Regulatory Flexibility Analysis C. Civil Justice Reform (Executive Order 12988) D. Consultation and Coordination With Indian Tribal Governments (Executive Order 13175) E. Federalism (Executive Order 13132) F. Reducing Regulation and Controlling Regulatory Costs (Executive Order 13771) G. Paperwork Reduction Act H. Unfunded Mandates Reform Act V. Final Regulations Department of Education Department of Homeland Security Department of Agriculture Agency for International Development Department of Housing and Urban Development Department of Justice Department of Labor Department of Veterans Affairs Department of Health and Human Services II. Joint Preamble A. General Support and Opposition Summary of Comments: Several commenters, including Members of Congress, agreed with the proposed rules and said that they protect religious liberty for faith-based organizations, including as guaranteed by the First Amendment to the U.S. Constitution. These commenters added that faith-based organizations are allowed to participate in Federal funding programs. Some commenters disagreed, however, arguing that no Federal funds should be given to faith-based organizations, including because such organizations are exempt from paying taxes. Some commenters argued that such faith-based organizations should be taxed. Several commenters supported the proposed rules because, they said, faith-based organizations should be allowed to compete on equal footing with secular organizations, without any discriminatory or unfair restrictions imposed based on religious character, affiliation, or exercise, which would raise constitutional problems. Some of these commenters also stated that such equal treatment aligns the proposed rules with Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). A common theme among these commenters was that organizations should not be forced to check their faith at the door when participating in government programs. Other commenters argued, however, that faith-based organizations have no entitlement to receive discretionary Federal financial assistance from the Agencies. Rather, these commenters argued that faith-based organizations need to be made aware of their obligations to comply with program requirements and with beneficiaries' constitutional protections. Some commenters said that faith-based organizations can exercise religion fully with private funds but need to serve all if they choose to accept Federal funds. One of these commenters stated that the proposed rules presented a solution in search of a problem, arguing that there is no indication faith-based organizations were harmed under the prior rule. Some commenters supported the proposed rules because they would clarify and reinforce existing Federal law regarding faith-based organizations' rights to freely exercise their religion and participate in civic life. They argued that the proposed rules were not a radical shift in policy. Some of these commenters also noted that the proposed rules would provide faith-based organizations with clarity regarding these rights. These commenters argued that such rights were unclear, given what they perceived as conflicts between the prior rule and Federal law, including constitutional rights to be free from discrimination based on religious character when participating in the Agencies' programs. For example, some commenters noted that the prior rule forced only faith-based organizations (and no other organizations) to give assurances and notices, which, they argued, was a violation of the Free Exercise Clause. Some commenters argued that the proposed rules, by creating greater clarity and removing burdens, would enhance faith-based organizations' participation in Federal programs, thus expanding the scope of social services provided to people in need. Some of these commenters also emphasized the role that faith-based organizations play in promoting the public good and human flourishing in the public square, including teaching, providing medical services, serving underserved communities, and participating in the foster care system. One commenter relied on data estimating the large dollar amounts—over one trillion dollars in total, and billions by specific groups and denominations—that religious organizations contribute to the economy annually. One commenter to HUD supported the proposed rules because equal participation by faith-based organizations is “essential to revitalizing communities,” including to “bridge the gap between communities and government.” Other commenters argued that the proposed rules would violate the Establishment Clause. They argued that the proposed rules could create impermissible third-party harms, could lead to religious coercion or proselytizing, could result in the use of taxpayer funds to favor certain religions over others, could create divisiveness, and could further entangle government and religion. Some of these commenters were also concerned that the proposed rules would allow the use of taxpayer funding for religious exercise or programming, contrary to taxpayers' consciences. These commenters argued that such funding would be contrary to the views of James Madison, as expressed in the Memorial and Remonstrance Against Religious Assessments (“ Memorial and Remonstrance” ) in 1785, and of Thomas Jefferson, as expressed in a bill that ultimately became the Virginia Statute for Religious Freedom in 1786 (“ Bill for Religious Freedom” ). 3 3 See James Madison, To the Honorable the General Assembly of the Commonwealth of Virginia: A Memorial and Remonstrance (ca. June 20, 1785), Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-08-02-0163 (“ Memorial and Remonstrance” ); Thomas Jefferson, A Bill for Establishing Religious Freedom (June 18, 1779), Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0082 (“ Bill for Religious Freedom” ). Numerous commenters were concerned that the proposed rules did not place enough emphasis on the interests of, and the impact on, beneficiaries. Several of these commenters argued that the proposed rules would favor faith-based organizations over beneficiaries, especially vulnerable beneficiaries. Commenters emphasized that beneficiaries are the focus of these government-funded programs and deserve consideration equal to, if not greater than, that afforded to faith-based organizations. Several of these commenters were concerned that the proposed rules could cause harms to beneficiaries, including discrimination and denial of services. These commenters were particularly concerned about discrimination against groups that these commenters identified as vulnerable, marginalized, or underserved, including people from minority religions or professing no religion, women, LGBTQ 4 people, people with low incomes, and people with disabilities. Commenters were concerned that beneficiaries' access to services would be impacted and that providers could impose religious litmus tests. Commenters were also concerned about removal of beneficiaries' religious liberty protections. One commenter also expressed concern regarding potential discrimination against volunteers. 4 This rule uses the term “LGBTQ” to refer to people identifying as lesbian, gay, bisexual, transgender, transsexual, queer, questioning, intersex, asexual, allied, pansexual, or otherwise, regardless of whether commenters used alternative acronyms such as LGBTQ+ or LGBTIA. Some commenters impugned the motives behind the proposed rules. Some commented that the proposed rules were designed—consciously or unconsciously—to give preferences, and ensure aid flows, to specific officials' religious denominations. One commenter argued that the proposed rules were designed to further discrimination under the guise of promoting faith-based organizations' religious freedom. Response: The Agencies agree with the comments that said the proposed rules (and this final rule) protect the religious liberty of faith-based organizations. The First Amendment allows faith-based organizations to participate, and compete on equal footing with secular organizations, in neutral government funding programs. See, e.g., Espinoza v. Mont. Dep't of Revenue, 140 S. Ct. 2246, 2254 (2020) (“We have repeatedly held that the Establishment Clause is not offended when religious observers benefit from neutral government programs.”). This final rule applies to such neutral Federal financial assistance programs and activities, removes burdens that were imposed solely on faith-based organizations, prohibits the imposition of additional such burdens, and more clearly conforms these regulations with existing Federal law, including constitutional law. Contrary to some comments, the tax-exempt status of faith-based organizations does not preclude them from participating in Federal financial assistance programs and activities. See 26 U.S.C. 501(c)(3). The Agencies also note that these programs are open to tax-exempt secular organizations and, as discussed in Part III.G.2 below, to faith-based organizations that pay taxes. To be sure, the Agencies agree with commenters that faith-based organizations, like all other organizations, have no entitlement to receive discretionary Federal financial assistance from the Agencies. But this final rule does not provide for any such entitlement. This final rule merely removes barriers to equal competition. It does not require any faith-based organization to be awarded Federal financial assistance in any program. Under this final rule, such award decisions will be made on neutral terms, consistent with Federal law. The Agencies also agree with the comment that the added accommodation language merely clarifies and reinforces Federal law regarding faith-based organizations' rights to exercise their religion and participate in civic life. Federal law requires or permits certain accommodations, see, e.g., 42 U.S.C. 2000bb-1, and this final rule merely clarifies the application of this law, as discussed in Part II.E. Similarly, the changes discussed in Parts II.D, II.F, II.G, and II.H bring these regulations into clearer conformity with existing Federal religious liberty law in those areas. The other changes ensure that faith-based organizations are eligible on equal terms with other organizations, which is consistent with and alleviates tension with the First Amendment and RFRA, as discussed in Parts II.C and II.G. The Agencies also agree with the comment that said it is important to give faith-based organizations notice of their obligation to comply with program requirements and beneficiaries' protections. This final rule provides for such notice, as discussed in Parts II.C and II.G.3 below. The Agencies disagree with the comment that said this final rule is a solution in search of a problem. Each provision in this final rule is being issued to address valid concerns, as discussed throughout this preamble. If anything, the alternative provider notice-and-referral requirements were solutions in search of a problem because, as discussed in Part II.C, there is no indication anyone sought a referral under those provisions, and there is no indication anyone has ever sought a referral under a separate HHS program where a statute mandates reporting of all referral requests. The Agencies disagree with the commenters that said this final rule violates the Establishment Clause. As discussed in each relevant section below, each change is consistent with the Establishment Clause. Third-party harms are discussed extensively in Parts II.C, II.D, and II.F, and this final rule retains the prohibition on religious coercion and proselytizing. Also, as demonstrated throughout this Joint Preamble, there is no indication that this final rule will lead to any improper use of taxpayer funds to favor certain religions, to create divisiveness, or to entangle government and religion. The Agencies also disagree with the commenters that the proposed rule would allow the use of taxpayer funds for religious exercise or programming in any improper way. This final rule retains the prohibition on explicitly religious activities in programs and activities funded with direct Federal financial assistance. Although indirect Federal financial assistance may be used for explicitly religious activities under this rule, the same was true under the prior rule, see, e.g., 81 FR at 19358, 19361-62, 19419. This practice is consistent with Federal religious liberty laws, including the Religion Clauses of the First Amendment, as discussed in Part II.D. The Agencies' conclusions are not affected by Madison's Memorial and Remonstrance or Jefferson's Bill for Religious Freedom. As they discuss throughout, this final rule is consistent with the Constitution and with governing statutes, as interpreted by the Federal courts. Any inconsistency with a pre-constitutional writing or State statute would not affect this final rule. Indeed, both documents cited by commenters contain several arguments that would not be considered appropriate for a government under current constitutional doctrine. 5 5 See, e.g., Memorial and Remonstrance (objecting to bill as “adverse to the diffusion of the light of Christianity” because it should be the “first wish of those who enjoy this precious gift” to be that it “may be imparted to the whole race of mankind”); Bill for Religious Freedom (stating that “Almighty God hath created the mind”); id. (rejecting certain coercive civil actions as “a departure from the plan of the holy author of our religion”). Regardless, this final rule is consistent with the broader principles animating Madison's Memorial and Remonstrance and Jefferson's Bill for Religious Freedom. Madison's Memorial and Remonstrance criticized a 1784 bill that would have provided for non-neutral funding—it mandated a tax to fund Christian teachers, with categorical exemptions for specific denominations. 6 Thus, similar to this final rule and current constitutional doctrine, Madison's Memorial and Remonstrance did not reflect opposition to faith-based organizations receiving neutral government funding on the same terms as other organizations. 7 6 Memorial and Remonstrance (charging that the 1784 bill “violates equality by subjecting some to peculiar burdens” and “by granting to others peculiar exemptions”). 7 See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 854 (1995) (Thomas, J., concurring) (“Madison's objection to the assessment bill did not rest on the premise that religious entities may never participate on equal terms in neutral government programs. . . . Madison's comments are more consistent with the neutrality principle[.]”). Additionally, Jefferson's Bill for Religious Freedom denounced the power of the Government—as embodied by the “magistrate”—to dictate permissible religious expression. For example, Jefferson's bill said that the civil magistrate cannot be allowed “to restrain the profession or propagation of principles on supposition of their ill tendency,” calling that “a dangerous fa[l]lacy, which at once destroys all religious liberty.” That sentiment is consistent with the added language in this final rule regarding faith-based organizations' religious autonomy and expression, as discussed in Part II.G.5. The Agencies agree with the comments that said this final rule provides greater clarity regarding faith-based organizations' religious liberties within the affected Federal financial assistance programs and activities. These rights were unclear under the prior rule, and improving clarity will increase participation for beneficiaries, including in unserved and underserved communities, as explained in the relevant Parts below. The Agencies also agree that these outcomes will help satisfy the needs of the beneficiaries of these programs, a consideration on which the Agencies place significant emphasis when designing and implementing these programs. And the Agencies recognize the contributions that both faith-based and secular organizations make to such beneficiaries, which contributions warrant allowing such organizations to compete on equal terms for Federal financial assistance. As discussed in detail throughout this preamble, the Agencies disagree that this final rule de-emphasizes, disfavors, or harms beneficiaries at the expense of faith-based organizations. There is no indication that any aspect of this final rule will lead to the harms asserted by commenters, including discrimination and denial of service, as explained in each section below. Because this final rule retains the prohibition on faith-based organizations discriminating against beneficiaries on religious bases, such organizations cannot impose a religious litmus test on beneficiaries. Faith-based organizations must comply with any other nondiscrimination provisions that apply to each program. This final rule does not change that requirement. The only relevant aspect of this final rule is the added accommodation language, which merely clarifies that otherwise binding Federal law applies. The accommodation language added in this final rule does not create any new bases for broader accommodations that would authorize discrimination or the denial of service, as discussed in Part II.E. Additionally, the treatment of volunteers is beyond the scope of this final rule. The prior rule, Executive Order 13831, and the NPRMs did not address volunteers. Therefore, the Agencies are not addressing volunteers directly in this final rule. To the extent that volunteers are impacted indirectly by any provision in this final rule, that provision is appropriate for the reasons discussed in the relevant Part below. Finally, this final rule is being promulgated for the reasons discussed throughout this preamble. The Agencies disagree with the comments that question the motivation behind this final rule. Because this final rule applies equally to all faith-based organizations, there is no basis for the comment that this rule is motivated by the desire to favor any specific religious denomination. Similarly, this final rule does not permit discrimination by faith-based organizations, indicating that a desire to allow for such discrimination was not a motive for the rule. Changes: None. Affected Regulations: None. B. Regulatory History and Legal Background As explained in the NPRMs, the primary purpose of this final rule is to implement Executive Order 13831, the most recent in a series of executive orders that address issues that affect faith-based and community organizations. As discussed in Part I above, the NPRMs provided a summary of those executive orders, as well as the Attorney General's Memorandum that was drafted and published pursuant to Executive Order 13798. Because many of the commenters who addressed Executive Order 13798 also referenced the Attorney General's Memorandum, the Agencies respond to those comments in the discussion of Executive Order 13798 below. 1. Executive Orders 13199 and 13279 Summary of Comments: A number of commenters who supported and opposed the proposed rules referenced President George W. Bush's Executive Orders 13199 and 13279. Some commenters stated that the proposed rules were consistent with Executive Order 13279, which helped to ensure that faith-based organizations have equal protection and opportunity under the law as they work to meet the social needs of American communities. Other commenters stated that removing the alternative provider requirements would stray greatly from tradition, current practice, and consensus in this area. They noted that “Charitable Choice” laws, which were precursors to the George W. Bush administration's faith-based regulations, included alternative provider requirements. See, e.g., 42 U.S.C. 290kk-1(f), 300x-65(e), 604a(e). One commenter stated that the NPRMs would stray from Executive Orders 13199 and 13279 by reducing the efficacy of distributing Federal funding. Another commenter stated that repealing or weakening the core beneficiary protections in the 2016 final rule is inconsistent with Executive Order 13279, which continues to bind the Agencies. One commenter objected that these executive orders sidestepped the bipartisan process and allowed for government-funded religious discrimination. Some commenters also expressed the sentiment that Executive Order 13279 and this final rule were contrary to the “separation of church and state.” Response: The Agencies disagree that removing the alternative provider notice-and-referral requirements undermines principles of equal treatment or strays from tradition. To the contrary, removing these requirements serves to remove unnecessary regulatory barriers to enable faith-based organizations to compete for, and participate fully in, Federal financial assistance without impairing their independence, autonomy, expression, or religious character. Additionally, removal of the notice-and-referral requirements does not “stray greatly from tradition.” First, doing so merely reinstates the status quo prior to 2016. Second, although there may be a pre-2016 practice of requiring referrals in the programs to which the Charitable Choice statutes cited by the commenters are applicable, the Agencies are not aware that any beneficiary has ever sought such a referral under one of those statutes, or that any beneficiary ever sought a referral under analogous provisions of the prior rule. See Part II.C. The Agencies' experience thus demonstrates that maintaining the referral requirements is not necessary to avoid harm to beneficiaries. Additionally, the Agencies disagree that these final rules are inconsistent with any portions of Executive Orders 13199 and 13279 that are currently in effect. Executive Order 13199 was revoked by Executive Order 13831 on May 3, 2018. 83 FR at 20717. Even so, this rule would have been consistent with Executive Order 13199, which directed the predecessor White House Office of Faith-Based and Community Initiatives (now replaced by the White House Faith and Opportunity Initiative) “to eliminate unnecessary . . . regulatory[] and other bureaucratic barriers that impede effective faith-based and other community efforts to solve social problems.” 66 FR at 8500. This final rule removes unnecessary regulatory barriers to enable faith-based organizations to compete for, and participate fully in, Federal financial assistance programs and activities without impairing their independence, autonomy, expression, or religious character. Executive Order 13279 remains in effect, as amended by Executive Order 13559 and further amended by Executive Order 13831. Executive Order 13279 currently provides that faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs and to “participate fully in [such programs] without impairing their independence, autonomy, expression, or religious character.” 67 FR at 77142. This final rule fulfils that directive by removing unnecessary regulatory barriers that applied only to faith-based organizations that wished to participate in federally funded social service programs. The Agencies furthermore do not believe that this final rule will reduce the efficacy of awarding Federal funding. Rather, it will enable faith-based organizations to participate equally in competing for Federal funding with secular organizations. If anything, removal of unnecessary administrative burdens will improve the efficiency and efficacy of awarding Federal funding. Reduced compliance burdens may free more resources for beneficiaries, and the removal of requirements that chill faith-based organizations' participation in Federal assistance programs may result in a broader, more diverse, and more competitive pool of grant recipients. Moreover, this final rule provides greater clarity on several issues, as discussed in Parts II.C, II.D, II.E, II.G, II.G, and II.H. The Agencies also disagree that Executive Orders 13199 and 13279 allow for government-funded religious discrimination. The opposite is true. Although it is no longer effective, the Agencies note that Executive Order 13199 stated that the delivery of social services in the United States “should value the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality.” 66 FR at 8499. Similarly, Executive Order 13279 currently provides that all organizations that receive Federal financial assistance under social services programs should be prohibited “from discriminating against beneficiaries or prospective beneficiaries of the social services programs on the basis of religion or religious belief,” and that such organizations, in their service-provision and outreach programs using Federal financial assistance, “should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to actively participate in a religious practice.” 67 FR at 77142. This final rule maintains the regulatory prohibition on such religious discrimination. The Agencies also do not believe that it is sensible to charge that an executive order has sidestepped the bipartisan process. An executive order is the President's exercise of constitutional authority, and the Agencies have carried out Executive Order 13831 in accordance with established rules of administrative process that provide full opportunity for input from people of all parties and perspectives. The Agencies have carefully reviewed and considered each of the comments they have received. In most cases, the Agencies are not even aware of, and in all cases are indifferent to, a commenter's partisan affiliation. The Agencies have considered each comment based on its independent merit. Additionally, to the extent the comment about the bipartisan process was referring to the 2010 President's Advisory Council on Faith-Based and Neighborhood Partnerships, the Agencies incorporate their discussion of that process from Part II.C. Finally, the Agencies disagree that these executive orders and this final rule are contrary to “the separation of church and state.” Some of these comments refer to and quote extensively from President Thomas Jefferson's letter of January 1, 1802 to the Baptist Association of Danbury, Connecticut, which letter described the First Amendment as “building a wall of separation between Church & State.” Thomas Jefferson, Letter for the Danbury Baptist Association (Jan. 1, 1802), Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-36-02-0152-0006. The precise meaning and usefulness of this metaphor for constitutional adjudication remains unclear. As Justice Frankfurter cautioned, “the mere formulation of a relevant Constitutional principle is the beginning of the solution of a problem, not its answer. This is so because the meaning of a spacious conception like that of separation of Church from State is unfolded as appeal is made to the principle from case to case.” McCollum v. Bd. of Educ., 333 U.S. 203, 212-13 (1948) (Frankfurter, J., joined by Jackson, Rutledge, and Burton, JJ.). It is thus critical to recognize that, in actual cases, the Supreme Court has “repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.” Espinoza, 140 S. Ct. at 2254. That result is what this final rule achieves, as explained throughout this preamble. Allowing for such participation is also consistent with many interpretations of Jefferson's letter, including that the wall of separation was intended to protect religion from the state, which this final rule does. 8 Furthermore, the relevance of that letter to constitutional law jurisprudence has been questioned repeatedly, including because President Jefferson at times invoked religion in his official actions and approved the use of Federal Government funds for religious purposes. 9 Significantly, and consistent with the Supreme Court's statement in Espinoza, then-Justice Rehnquist explained that, even when considering Jefferson's wall metaphor, “[t]he Establishment Clause did not . . . prohibit the Federal Government from providing nondiscriminatory aid to religion.” Wallace v. Jaffree, 472 U.S. 92, 106 (1985) (Rehnquist, J., dissenting). In short, “[t]he metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984)). 8 See, e.g., Noah Feldman, Divided By God 40 (2007) (arguing that the “Jefferson who drafted the Virginia statute” was “focus[ed] . . . on protecting religion from government, not the other way around”). 9 See, e.g., Wallace v. Jaffree, 472 U.S. 92, 103 & n.5 (1985) (Rehnquist, J., dissenting) (observing that a treaty entered into by the Jefferson administration “provided annual cash support for [a Native American tribe's] Roman Catholic priest and church”); Engel v. Vitale, 370 U.S. 421, 446-49 & n.3 (1962) (Stewart, J., dissenting); McCollum, 333 U.S. at 245-47 (Reed, J., dissenting); see also Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State 21-23 (2003) (noting that, although Jefferson declined to issue religious proclamations of thanksgiving, nonetheless, “as the nation's head of state, he personally encouraged and symbolically supported religion by attending public church services in the Capitol” and “attend[ing] worship services on government property”); id. at 29-30 (explaining the argument that the letter in which Jefferson expressed the wall metaphor was a “political manifesto,” rather than an attempt to define Establishment Clause jurisprudence). See generally Philip Hamburger, Separation of Church and State (2002). Changes: None. Affected Regulations: None. 2. Executive Orders 13498 and 13559 Summary of Comments: A number of commenters—some who supported and some who opposed the proposed rules—referenced President Barack Obama's Executive Orders 13498 and 13559. Commenters who supported the proposed rules stated that the Obama Administration's changes to the equal treatment rule had placed extra and unfair burdens on faith-based entities, discriminated against such entities (including by allowing religious participation in indirect-aid programs only if there was a secular alternative without imposing a reverse requirement on secular providers), treated such entities as suspect purely because of their religious nature, and ignored the gravity of religious complicity-based objections, contrary to the First Amendment, RFRA, Supreme Court precedent, and binding legal principles described in the Attorney General's Memorandum. One commenter also asserted that the notice-and-referral requirements established by Executive Order 13559 were unconstitutional compelled speech under National Institute of Family Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), because they required only faith-based organizations to give the scripted disclosure. Commenters who objected to the proposed rules drew attention to President Obama's 2016 Executive Order 13559, which they characterized as putting significant safeguards for beneficiaries into place based on consensus recommendations of the President's Advisory Council on Faith-Based and Neighborhood Partnerships, a body composed of religious and community leaders from a wide range of faiths and organizations. A commenter from a faith-based organization supported the notice-and-referral requirements of Executive Order 13559 as striking the right balance between ensuring the continuation of public-private partnerships with faith-based organizations to provide social services, consistent with the Constitution, RFRA, and Supreme Court precedent, and ensuring that millions of beneficiaries of these programs were not subject to proselytizing by publicly funded service providers and that viable secular alternatives are available and accessible. Finally, one commenter protested that the proposed rules would allow organizations that accept “indirect” aid to require beneficiaries to participate in religious activities, in conflict with Executive Order 13559. Response: The Agencies agree with the commenters who stated that the notice-and-referral requirements of Executive Order 13559 were in tension with Supreme Court precedent, RFRA, and free exercise principles, as explained in Part II.C. The Agencies disagree with the suggestions that they must follow the recommendations in the Final Report of the President's Advisory Council on Faith-Based and Neighborhood Partnerships (“Advisory Council Report”), although the Agencies have certainly given those recommendations all due consideration. As discussed at greater length in Part II.C, those recommendations were just that and are not controlling. The Agencies are promulgating this final rule after carefully considering over 95,000 public comments from a wide array of sources, including private citizens, advocacy groups, religious organizations, public policy organizations, State and local governments, and Members of Congress. That process reflects a diversity of input no less than did the recommendations of the Advisory Council comprising “not more than 25 members appointed by the President” in 2009. See 74 FR at 6534. Further, the Advisory Council Report cited minimal justification for requiring religious organizations to make referrals based on objections to the provider's religious character. The Agencies did not find this justification persuasive, as discussed in Part II.C below. There is also no indication that any beneficiary sought such a referral, before or after the referral requirement was imposed in 2016, or that any beneficiary would be harmed by removing the referral requirement. The Agencies disagree that the referral requirement was a critical religious liberty protection and that it must be retained in order to put primary emphasis on the needs of beneficiaries. The Agencies respond to the comments regarding RFRA, free exercise, and related Supreme Court precedents at length elsewhere in this final rule, especially in Parts II.C, II.E, II.F, and II.G. They incorporate that analysis by reference here. The Agencies also clarify that they are not relying on the Free Speech Clause as a basis for removing the notice requirement. The Agencies do not rely on Becerra, 138 S. Ct. 2361. That case is different for several reasons, including because the law in that case did not impose a notice requirement on recipients of government funding. Finally, the Agencies disagree that the updated definition of “indirect Federal financial assistance” in this final rule conflicts with Executive Order 13559 because it would permit organizations receiving indirect aid, such as vouchers, to require religious observance as part of their activities. Indirect Federal financial assistance, by definition, permits the beneficiary to choose where to use the assistance. Executive Order 13559 recognized “the distinction between `direct' and `indirect' Federal financial assistance,” 75 FR at 71321, and it did not restrict what an organization at which a beneficiary chose to use the indirect assistance might require of the beneficiary in terms of religious observance. It imposed restrictions only on organizations receiving direct assistance, stating that organizations that engage in explicitly religious activities must perform such activities and offer such services outside of programs that are supported with “direct” Federal financial assistance; that such organizations must do so separately in time or location from any such programs or services supported with “direct” Federal financial assistance; and that participation in any such explicitly religious activities must be voluntary for the beneficiaries of the social service program supported with “such” Federal financial assistance.” Id. at 73120. The updated definition of “indirect Federal financial assistance” is valid for all of the reasons discussed in Part II.D below. Changes: None. Affected Regulations: None. 3. Executive Orders 13798 and 13831 and the Attorney General's Memorandum Summary of Comments: A number of commenters—some who supported and some who opposed—the proposed rules referenced President Donald Trump's Executive Orders 13798 and 13831, as well as the Attorney General's Memorandum. Several commenters stated that the proposed rules were consistent with the provisions of Executive Orders 13798 and 13831, the Attorney General's Memorandum, and the Constitution because of their equal treatment of religious groups. They said that these Executive Orders and the proposed rules restore constitutional freedoms, respect the rights of religious taxpayers and beneficiaries, and allow religious organizations to further support the community rather than focus on additional federally mandated burdens. Several commenters expressed their support for Executive Order 13831, including one organization that concluded that neutral treatment by government not only allows religious organizations to operate in accordance with their faith but also promotes the flourishing of the common good. A comment provided jointly by 21 current members of the House of Representatives stated that the final rule implementing Executive Order 13831 “will restore an environment of religious freedom across the country” because “an organization's religious affiliation will no longer subject individuals to unequal treatment by Federal, state, and local governments.” Other commenters contended that the proposed rules were contrary to Executive Order 13831 because they exhibited favoritism toward religious organizations for purely political reasons. One commenter charged that the proposed rules were inconsistent with Executive Order 13798 because they would limit end-of-life care options for people with terminal illnesses. Another commenter said that Executive Order 13831 contradicted Executive Order 13798, which states that Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. One commenter stated that the Agencies' reliance on the Attorney General's Memorandum was misplaced, and that the Memorandum violated the Establishment Clause, had questionable legal authority, and was an expansion of religious freedom exemptions and protections that allowed religious institutions to discriminate and harm others. Another commenter said that Executive Order 13831 was contrary to the separation of church and state. Response: The Agencies agree that this final rule is consistent with Executive Order 13798, which states that the Federal Government will honor the “freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.” 82 FR at 21675. The final rule fulfills this promise. The Agencies agree that the final rule is consistent with Executive Order 13831 as well. Executive Order 13831 charged the White House Faith and Opportunity Initiative with identifying ways to reduce “burdens on the exercise of religious convictions and legislative, regulatory, and other barriers to the full and active engagement of faith-based and community organizations” in Government-funded programs, in accordance “with Executive Order 13798 and the Attorney General's Memorandum.” 83 FR at 20716. The Agencies disagree that there is any contradiction between Executive Orders 13798 and 13831. The Agencies further believe that the final rule is consistent with Executive Order 13798 and will not have any discernable impact on individuals with terminal illnesses because, as explained more fully in Part II.C.2, the rule will not negatively impact beneficiaries. The Agencies also agree that this final rule is consistent with the Attorney General's Memorandum, which summarizes current jurisprudence on religious liberty, including the First Amendment prohibition against discrimination based on religious character and RFRA protections. That Memorandum accurately canvasses the legal authorities governing executive branch agencies' treatment of religion, including the Constitution, Supreme Court precedents, Federal statutes ( e.g., RFRA, Title VII of the Civil Rights Act of 1964, including the religious exemption to Title VII, the Religious Land Use and Institutionalized Persons Act, and the American Indian Religious Freedom Act), numerous executive orders, and the Guidelines on Religious Exercise and Religious Expression in the Federal Workplace, which President Clinton issued on August 14, 1997. Parts II.C, II.D, II.E, II.G.1, II.G.2, and II.J explain how the final rule is consistent with the principles articulated in the Attorney General's Memorandum. For the same reasons, the Agencies do not believe their reliance on the Attorney General's Memorandum is misplaced. And because the final rule works to re-establish government neutrality toward religion, the Agencies do not agree that it favors religious organizations for political reasons. Finally, the Agencies disagree that Executive Order 13831 is contrary to separation of church and state, for the reasons discussed in Part II.B.1 above. Changes: None. Affected Regulations: None. C. Notice-and-Referral Requirements All of the Agencies' existing regulations, with the exception of USAID's, require each religious organization receiving direct Federal financial assistance to give written notice to all beneficiaries that: (1) The religious organization could not discriminate against them based on religion or religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice; (2) the organization could not require them to participate in explicitly religious activities and any such participation had to be voluntary; (3) the organization had to separate explicitly religious activities from the funded program in time or location; (4) beneficiaries could object to the organization's “religious character” and the organization would then be required to undertake reasonable efforts to identify an alternative provider to which they did not object, though there was no guarantee such an alternative would be available; and (5) beneficiaries could report any violation of these protections through a specified process. The regulations of DOJ, USDA, DOL, HHS, HUD, ED, VA, and DHS required religious organizations to provide this notice to prospective beneficiaries as well. The Agencies prescribed the specific wording of this notice on forms attached in Appendices to their regulations in the Code of Federal Regulations. If a beneficiary were to object to receiving services or benefits from an organization with a religious character, the Agencies' regulations required the religious organization to exert reasonable efforts to refer them to an alternative provider of comparable services to whom they had no objection and to make a record of the referral. DOJ, USDA, DOL, HUD, ED, and DHS applied this referral requirement to organizations receiving direct Federal financial assistance. HHS and VA applied this referral requirement to organizations receiving both direct and indirect Federal financial assistance. Secular organizations were not subject to any equivalent notice-and-referral requirements. All of the Agencies' NPRMs proposed amending their regulations to eliminate the notice-and-referral requirements, as well as the prescribed notice text in the corresponding Appendices. Because USAID never adopted the notice-and-referral requirements, 81 FR 19384-85, the comments in this section do not apply to USAID, unless otherwise noted. Removal of the notice-and-referral requirements was discussed more extensively in the comments than any other issue in the Agencies' NPRMs. The Agencies, therefore, have decided to describe these comments in detail and respond to them at length. Many of the commenters were not precise in the scope of their comment, including with respect to what aspect or aspects of the notice-and-referral requirement they were addressing. The Agencies endeavor to respond to them as best as possible. 1. Beneficiary Rights a. Notice and Referral to Alternative Provider Summary of Comments: The majority of comments regarding beneficiaries' rights focused on the referral requirement and the related aspect of the notice requirement, which are here referred to collectively as the “alternative provider notice-and-referral requirements,” or simply the “notice-and-referral requirements.” Many commenters supported removal of these requirements for the reasons discussed in Part II.C.2 below. Multiple commenters argued that the existing notice-and-referral requirements struck the appropriate balance between religious-freedom interests and the need to fulfil each Agency's mission. One commenter said that the requirements struck the appropriate balance between beneficiaries' right to access care and providers' right to maintain their faith-based principles. Other commenters said that the requirements helped maintain a balance between protecting beneficiaries' religious freedom and expanding service delivery through faith-based organizations. Some commenters also noted that the Advisory Council had agreed that the needs of the people seeking services must be the primary concern. Several commenters opposed removal of these requirements, arguing that they were important, necessary, “critical,” and longstanding protections for the religious liberties of beneficiaries. Many based this argument on the recommendations of the President's Advisory Council on Faith-Based and Neighborhood Partnerships' 2010 report. See President's Advisory Council on Faith-Based and Neighborhood Partnerships, A New Era of Partnerships: Report of Recommendations to the President at viii, 140-41 (Mar. 2010), https://obamawhitehouse.archives.gov/sites/default/files/docs/ofbnp-council-final-report.pdf (“2010 Advisory Council Report”). These commenters argued—independently and based on the Advisory Council Report—that these protections were part of current practice for respecting religious liberties, relying on the Charitable Choice statutes that govern the Substance Abuse and Mental Health Services Administration (“SAMHSA”) and the Temporary Assistance for Needy Families (“TANF”) program; the regulations implementing those statutes; proposed legislation that contained a referral requirement, including “signature legislation backed by President Bush”; and a statement from the Administration of President George W. Bush that the Charitable Choice provisions “protect the religious freedom of beneficiaries.” Other commenters reasoned that the referral requirement represents an important, though unexplained, principle that should be maintained. Some commenters argued that the alternative provider notice-and-referral requirements should be retained in their entirety because they were pillars of the “consensus” and common-ground religious liberty recommendations from the 2010 Advisory Council. See 2010 Advisory Council Report at 140-41. They said that retaining these requirements would strengthen the partnerships that the Government had formed and would help build future consensus that would lead to stronger and more enduring rules. They also said that the 2010 Advisory Council Report's recommendations should be preserved because that report claimed to reflect the first consensus recommendation on these matters from such a diverse group of participants. Some commenters expressed concern that removing these requirements would negate this consensus. Some commenters opined that the Agencies offered no reasonable explanation for their decision to abandon this careful, consensus-based effort. The Chair of the 2010 Advisory Council (hereinafter the “Council Chair”), who later became the Special Assistant to the President and Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships, and served as the main point of contact for the 2016 final rule, 81 FR 19355, argued in a comment that this change would disserve beneficiaries, induce policy shifts on “hotly contested” issues from administration to administration, and make it harder to achieve such diverse consensus in the future. Instead, the Council Chair argued that there should be minimal changes. Some commenters expressed concern that consensus-based rules were being replaced with new rules that they claimed were polarizing and problematic and that put ideology above providing services to people in need. Several commenters claimed that the alternative provider referral requirement protected beneficiaries' right not to be “uncomfortable” receiving services from religious providers or in religious settings, even in programs that complied with secular content requirements. Several commenters said that beneficiaries “might feel unwelcome” if the provider was known to espouse views that characterized the beneficiaries as sinful or deviant. Some commenters argued that this referral requirement was imposed solely on faith-based organizations to protect beneficiaries from risks that do not exist when secular providers administer benefits. Some commenters argued that beneficiaries had a right to alternative provider notice to make them aware of their ability to object when the service provider was religious, had a religious affiliation, or exhibited a religious viewpoint. They emphasized the importance of alternative provider notice-and-referral requirements when the provider worked to promote, or was associated with, a faith known to espouse religious views or values contrary to beneficiaries' or that deemed beneficiaries as sinful or deviant. They said these requirements were also important in cases when certain providers alerted beneficiaries that the provider was exempt from certain Federal regulations and could not or would not help beneficiaries in some situations. They said that these notice-and-referral requirements enabled beneficiaries to seek services from providers that they knew would be required to adhere to all Federal regulations. One commenter said that potential beneficiaries needed the alternative provider notice-and-referral requirements to make them aware of alternatives when they encountered “impractical or inconvenient services.” Finally, some commenters questioned the Agencies' bases for removing the alternative provider notice-and-referral requirements when, according to them, nothing had changed since 2016. Some recognized the subsequent decision in Trinity Lutheran but argued that it did not change the analysis because of the beneficiary harms discussed in Part II.C.2.a. Response: The Agencies work hard to safeguard beneficiaries' religious liberties. The Agencies disagree, however, that the alternative provider notice-and-referral requirements meaningfully protected those rights. The vast majority of commenters did not cite any legal basis for their claim, offering only an unexplained “principle.” Moreover, the 2010 Advisory Council Report and those commenters that did cite a legal basis for their claim relied on statutes and implementing regulations specific to certain programs, such as SAMHSA and TANF, that require government entities to make referrals. However, this final rule removes a different notice-and-referral requirement from other programs to which those statutes do not apply, as the 2016 final rule acknowledged, see 81 FR 19399. The 2010 Advisory Council Report and these commenters also relied on legislation that had been introduced but was never enacted, as well as a generic statement from the Administration of President George W. Bush referring to religious liberty protections generally. These sources do not establish a general right to the alternative provider notice and referral. The Agencies also disagree that the alternative provider notice-and-referral requirements were “long-standing.” Apart from the program-specific statutes, these requirements became part of Federal law only through the 2016 rulemaking, based on language added to Executive Order 13279 by Executive Order 13559 in 2010. In 2018, Executive Order 13831 removed that language. The Agencies appreciate the hard work, compromise, and consensus-building that went into the 2010 Advisory Council Report's recommendation and the 2016 final rule. The Agencies do not doubt that the 2010 Advisory Council Report's recommendation to create notice-and-referral requirements was made in good faith. The Agencies disagree, however, with the contention that the 2010 Advisory Council Report made a sufficiently persuasive case that requiring only faith-based organizations to make such notices and referrals was necessary to protect the rights of beneficiaries. Also, the Agencies' experience with the alternative provider notice-and-referral requirements has led to the conclusion that they were not needed and, in fact, raise a number of legal and policy concerns, as discussed later in Part II.C. Stakeholders should have flexibility to draw different lines at different times based on differing policy priorities, and no governing principle limits the Agencies to only minimal changes. The Agencies trust that diverse stakeholders will work on any future rulemakings in good faith, just as they have in commenting on this proposed rule and in countless other contexts. If anything, the changes from the 2016 final rule to this final rule should narrow the scope of hotly contested issues in this area. The Agencies, of course, are retaining several of the 2010 Advisory Council Report's recommendations that were incorporated into the 2016 final rule, including those recommendations concerning nondiscrimination and explicitly religious activities. See 2010 Advisory Council Report at 129-33. Accommodating objections to a provider's “religious character” did not and does not fit well within existing legal frameworks for beneficiaries' rights under provisions such as the Establishment Clause, the Free Exercise Clause, and RFRA. Beneficiaries have no Establishment Clause right to a referral if they object to a provider's religious character. Rather, the Supreme Court has “repeatedly held that the Establishment Clause” allows faith-based providers to receive and use Federal funding on neutral terms. Espinoza, 140 S. Ct. at 2254 (citing Locke v. Davey, 540 U.S. 712, 719 (2004); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 839 (1995)). It did not condition these holdings on a requirement that the faith-based provider in a government-funded program refer a beneficiary to another provider in the event that the beneficiary objects to the provider's religious character. Moreover, the Agencies did not base these requirements on the Establishment Clause when they initially imposed them in 2016. The alternative provider notice-and-referral requirements also did not vindicate beneficiaries' rights under the Free Exercise Clause and RFRA, except perhaps in exceptional circumstances better addressed if and when they arise. Instead, they privileged mere discomfort with a provider's general religious character, irrespective of the beneficiary's religious status or exercise. The requirement to make a referral extended to objections with no basis in religious status or exercise, such as objections based on raw anti-religious animus. For example, a beneficiary could have objected to being served by a Muslim organization based on a biased and secular view that Islam was to blame for terrorism. There is no Free Exercise Clause or RFRA right to be referred to another provider based on such an objection. At the same time, the referral requirement ignored a religious beneficiary's objection to receiving federally funded social services from a secular provider when the beneficiary was uncomfortable with the secular environment. From the beneficiary's perspective, such discomfort is no less a concern. In both cases, the discomfort is based on receiving services from an entity that does not share the beneficiary's religious beliefs. No interpretation of the Free Exercise Clause or RFRA requires that a beneficiary's objection to a provider's religious character should have greater salience than a beneficiary's objections to a provider's non-religious character. Furthermore, many citizens routinely accept burdensome conditions so that the Government can protect others' First Amendment rights. Although the Agencies want all beneficiaries to be comfortable, they do not believe potential discomfort over the identity of a provider is of sufficient magnitude to warrant blanket application of the alternative provider referral requirement. And with no right to referral, there is also no right to notice of a referral right. It is also not clear to what extent the referral requirement actually reduced the discomfort an objecting beneficiary might feel. To obtain a referral, the objecting beneficiary (if indeed there were any) had to disclose the objection to someone affiliated with the same religious organization the beneficiary considered objectionable. Moreover, in order for the provider to successfully refer the beneficiary to a provider to which the beneficiary had no objection, the objecting beneficiary likely needed to inform the objectionable organization of the nature of the objection and the scope of the needed services. Commenters provided the example of an unmarried pregnant woman who might not seek services from a religious provider that disapproves of sexual relations outside of marriage. Under the 2016 final rule, this provider could not have provided an appropriate referral unless the beneficiary disclosed that she was seeking pregnancy services and needed a referral to another provider that did not disapprove of women having children outside of marriage. It is not clear that a beneficiary would feel more comfortable making such a disclosure than receiving the service from the religious provider or finding an alternative provider through independent means. There is an even greater disconnect reflected in one commenter's claim that the referral requirement was warranted to protect beneficiaries who encountered “impractical or inconvenient services.” Those objections have nothing to do with the religious character of the provider, and they apply equally to nonreligious providers, which have never had a referral obligation towards people who found their services impractical or inconvenient. The referral requirement simply was not designed to address those kinds of objections. The Agencies disagree that the alternative provider notice-and-referral requirements were necessary to warn beneficiaries that the religious provider might be exempt from Federal regulations and to enable the beneficiary to seek services from another provider that adhered to all Federal regulations. The Federal regulations themselves provided no such notice and did not reference exemptions from Federal program requirements. Indeed, the 2016 final rule explicitly rejected calls to include information on “any services or information that the provider refuses to provide due to religious or moral objections.” 81 FR 19363; see also id. at 19365. If anything, such notice could have been misleading because it would have listed requirements without indicating any possibility of exceptions, even though faith-based organizations could have sought accommodations from those requirements under the First Amendment, RFRA, and Uniform Administrative Requirements, Cost Principles, and Audit Requirements that all the Agencies have adopted. See 2 CFR 200.102 (Office of Management and Budget (“OMB”) guidance permitting the issuance of exceptions from grant requirements); see also, e.g., 2 CFR 2800.101 (DOJ). If it is appropriate for an exempt organization to provide notice and referrals, that requirement can be attached to an exemption, offering a more tailored solution that does not require all faith-based providers—including those that adhere to all Federal regulations—to give notice and referrals to all beneficiaries. The Agencies also do not believe it generally appropriate to require notice or referrals merely because a beneficiary might disagree with the religious beliefs of the service provider or its affiliates. Under such a rule, a beneficiary could object, for example, to receiving services from nuns—providing purely secular services and taking no position on the objectionable issues—solely because those nuns were affiliated with a church that took positions to which the beneficiary objected. Beneficiaries are free to reject services from a provider because of that objection, but they do not have a right to demand that the provider assist in finding an alternative provider. For all of these reasons, the Agencies reach different conclusions about the alternative provider notice-and-referral requirement than they did in 2016. Their experiences with the 2016 final rule, their desire to avoid legal concerns over the alternative provider notice-and-referral requirement created by recent Supreme Court cases, see Part II.C.2, and their skepticism about the wisdom of imposing categorical requirements in this area all factor into this decision. Removing the alternative provider notice-and-referral requirements is the appropriate legal and policy choice. Changes: None. Affected Regulations: None. b. Other Notices Summary of Comments: Several commenters also addressed the other notices, namely, notice of the prohibition on certain religion-based discrimination, of the restrictions on explicitly religious activity, and of the opportunity to report violations of these provisions. Several commenters argued that these other notices should not be removed because they were necessary to make beneficiaries, especially vulnerable beneficiaries, aware of their rights and able to exercise or seek enforcement of those rights. Commenters said that such notices were part of beneficiaries' underlying rights to be free from discrimination based on religion and to receive services separate from explicitly religious activities. Some of these commenters also argued that nothing had changed since the Agencies' determination in 2016, 81 FR 19365, that beneficiaries needed notice of these other “valuable protections.” Regarding the need for the other notices, commenters disagreed about whether faith-based organizations were as likely as other organizations to follow the law. Some commenters agreed with the Agencies that such notices imposed unjustified additional administrative burdens that singled out faith-based providers. These commenters agreed with the explanation—in the NPRMs of DOJ, DOL, HHS, HUD, ED, VA, and DHS—that beneficiaries do not need “prophylactic protections that create administrative burdens on faith-based providers and that are not imposed on other providers.” 85 FR 2891 (DHS), 2924 (DOJ), 2932 (DOL), 2941 (VA), 2977 (HHS) 3195 (ED), 8219 (HUD). Other commenters argued, however, that this rationale did not support the wholesale repeal of the other notice requirements. One commenter claimed that these notices were valuable to reassure qualified beneficiaries that the religious organization would follow the law. The commenter provided the hypothetical example of qualified beneficiaries who had had negative encounters with religious organizations and who would be inclined to refuse services from a faith-based organization but might overcome that reluctance due to the assurances in the notice. Several commenters also charged that the Agencies had conceded the importance of these other notices by proposing to provide notices to faith-based organizations of their eligibility to seek and receive Federal funds. They said that beneficiaries should receive the same courtesy as potential applicants. Similarly, one commenter argued that Federal agencies had recognized the importance of notices in implementation of civil rights laws, pointing to HHS regulations regarding notice in 45 CFR 80.6(d), which have remained unchanged since their issuance in 1964 and are accompanied by model notice documents on the HHS website. Response: The Agencies understand that illegal discrimination can be harmful to beneficiaries and can result in their forgoing services. The Agencies are committed to fighting illegal discrimination and ensuring that all beneficiaries have equitable access to the benefits provided by the federally funded programs and services governed by this final rule. This final rule reaffirms each Agency's regulatory provisions prohibiting providers—faith-based or secular, recipients of direct or indirect aid—from discriminating against beneficiaries based on religion. Additionally, for direct aid programs, this final rule retains the provisions prohibiting use of funds for explicitly religious activity and requiring any beneficiary's participation in explicitly religious activity to be voluntary. The Agencies do not agree, however, that the other notices were vital to make beneficiaries aware of, and able to protect or seek enforcement of, these protections. No law mandates that beneficiaries receive such notice, and none was cited by the 2010 Advisory Council Report, the 2016 final rule, or the commenters on these proposed rules. As discussed in Part II.C.3.c, the Agencies believe the substantive provisions are adequate to protect beneficiaries' rights. The Agencies also disagree that it is justified to require only faith-based organizations receiving direct Federal financial assistance to provide notice of the other protections. Any provider—faith-based or secular—is capable of discriminating on the basis of religion or of incorporating religious elements into its programs, such as the 12-step addiction recovery program that commenters cited as explicitly religious and that is discussed in Part II.C.2.b. (Many government-issued manuals promote 12-step programs, and many secular organizations conduct them as well.) Yet none of the secular providers were required to provide notices of these other protections. None of USAID's program participants—faith-based or secular—was required to provide such notices under the 2016 rule. And no provider in USDA's Child Nutrition Programs, including its school lunch program, was required to provide such notices. 10 The Agencies thus have already recognized that many beneficiaries do not need the other notices, in order to be aware of, and able to exercise, their corresponding rights. 10 The 2016 rule deemed the Child Nutrition programs indirect aid for purposes of exempting them from the notice (and referral) requirements, even though these programs otherwise meet the definition of “direct Federal financial assistance.” 81 FR at 19381; see also id. at 19413-14 (§ 16.4(a), (g), (h)). The Agencies furthermore disagree that the other notice requirements can be justified as a measure to allay the fears of beneficiaries who might have had bad experiences with religious organizations. Beneficiaries might have had similar bad experiences with secular providers. Because the other notice requirements applied solely to religious organizations, they stigmatized religious organizations and risked stoking unnecessary fears by suggesting that religious organizations were more prone to violate program obligations that apply to all providers. A beneficiary who received the notices from a faith-based provider but not a secular provider of similar services might assume that the former was a serial violator, or that the latter was not subject, for example, to the nondiscrimination obligations. Additionally, research cited by some commenters found that people with an expectation of rejection or discrimination would feel that way “whatever others profess” to the contrary. 11 That research undermines the supposition that a form notice required by the Government would meaningfully allay beneficiaries' fears that they would be subject to discrimination. 11 Ilan H. Meyer, Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual Populations: Conceptual Issues and Research Evidence, 129(5) Psychol. Bull. 674, (Sept. 2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2072932/. Similarly, notice requirements that apply to other programs do not demonstrate that the Agencies should retain the notice requirement from the 2016 final rule. Commenters pointed to the notice in the HHS regulation at 45 CFR 80.6(d). That provision mandates that “[e]ach recipient” of funding “shall make available to participants, beneficiaries, and other interested persons” information regarding regulations effectuating Title VI of the Civil Rights Act of 1964 that bar discrimination based on race, color, or national origin. 45 CFR 80.1, 80.2, 80.3, 80.6(d). The HHS notice applies comprehensively to all recipients and was designed to help eradicate racial discrimination by any provider. This stands in contrast to the notice requirement from the 2016 final rule, which compelled only faith-based organizations to provide notice of certain beneficiary protections without evidence that faith-based organizations violated those protections more regularly than other providers, if at all. This final rule is meant to enable faith-based organizations to participate equally in the Agencies' federally funded programs. Removing the notice requirement takes one step toward achieving that purpose. This analysis is further bolstered by HHS's response in Part III.I regarding the distinctions between this final rule and HHS's recent final rule, Protecting Statutory Conscience Rights in Health Care, 84 FR 23170 (May 21, 2019). Ultimately, the justification for imposing these notice requirements solely on faith-based providers participating in certain direct aid programs was prophylactic, perhaps based on the assumption that these providers were less likely to follow the law. But there is no basis on which to presume that faith-based providers are less likely than other providers to comply with their legal obligations. And any narrative to the contrary smacks of the now-repudiated Establishment Clause doctrine stating that “pervasively sectarian” institutions could not receive government funds, even for secular purposes, because they could not be trusted to prevent the diversion of government funds to religious uses. Cf. Agostini v. Felton, 521 U.S. 203, 224 (1997) (noting the Supreme Court's rejection of the idea that “solely because of her presence on private school property, a public employee will be presumed to inculcate religion in the students”). Because, among other things, the Agencies now recognize that any such prophylactic concerns were exaggerated as well as selectively applied, the Agencies are changing the 2016 final rule. As discussed in Part II.G.3, the Agencies will provide notice to potential applicants and awardees of their obligations under federally funded social service programs, including notice of the prohibitions on religion-based discrimination and explicitly religious activities. Those notices will ensure that the underlying requirements are incorporated into organizations' applications and compliance programs. Those notices are also consistent with Trinity Lutheran and RFRA, and they ensure that organizations are aware of their obligations under law—and of the Agencies' commitment to enforcement of these obligations—before applying for and accepting an award. Requiring these notices to faith-based providers does not conflict with removing the requirement to provide the other notices to beneficiaries. This final rule requires the Agencies and intermediaries to integrate such notices to faith-based organizations into the comprehensive program requirement materials already distributed to providers. This practice is materially different—for reasons discussed throughout Parts II.C and II.G.3—from requiring only faith-based providers to give the other notices to beneficiaries, especially notices that stigmatized faith-based providers by implying that they were more likely than their secular peers to violate the law. Additionally, beneficiaries who received the other notices would already have been communicating with the faith-based provider, and they could have asked the provider questions to ensure their eligibility and understand the scope of available benefits. The other notices thus provided little marginal utility to beneficiaries. Rather, notices to providers are a more appropriate way to achieve compliance with legal obligations, consistent with the constitutional and other concerns discussed throughout Part II.C that the Agencies are seeking to avoid. Changes: None. Affected Regulations: None. 2. Beneficiary Harms a. In General Summary of Comments: Several commenters claimed that removing all of the notice requirements, as well as the referral requirement, would cause various harms, burdens, and costs to beneficiaries. Some said that beneficiaries would no longer be aware of, and able to avail themselves of, the underlying religious liberty protections. Many claimed that removing the notice requirements would especially affect groups that commenters characterized as disadvantaged, including women, religious minorities, people of color, LGBTQ people, people with lower incomes, people with disabilities, and people in rural communities. Additionally, some commenters argued that the Agencies had not attempted to quantify the costs to beneficiaries associated with removal of these requirements. Several commenters were concerned that removing the all of the notice requirements and the referral requirement would expose beneficiaries to increased religious discrimination, denial of services, proselytization, bias, or coercion. Several commenters, including advocacy organizations and Members of Congress, anticipated that these harms would increase because beneficiaries would no longer be aware of, and able to safeguard, their rights. Some commenters added concerns that beneficiaries might be more vulnerable to efforts to coerce them to participate in religious activities if they mistakenly believed such activities were necessary to access support. Other commenters were concerned about impacts on vulnerable groups, such as women, adherents of minority faiths, and LGBTQ people. And some local governments claimed that certain faith-based providers openly discriminate on the basis of gender identity or sexual orientation. Some commenters argued that the Agencies had not adequately examined whether removing the notice would increase discrimination. They said the Agencies needed to provide evidence of other reliable, systematic ways to notify beneficiaries of these protections. Without such efforts, commenters claimed, these vulnerable beneficiaries—including refugees, human trafficking victims, and homeless youth—would be cut off from the one guaranteed way to ensure they know about these key protections. Multiple commenters claimed that removing the alternative provider notice-and-referral requirements would harm beneficiaries by requiring them to take on the burden of identifying alternatives. These commenters noted that DOJ, DOL, HHS, HUD, VA, DHS, and USDA had acknowledged in their NPRMs that there could be a cost to objecting beneficiaries from having to locate alternative providers on their own. 85 FR 2894 (DHS), 2903 (USDA), 2926 (DOJ), 2935 (DOL), 2944 (VA), 2983 (HHS), 8221 (HUD). Commenters argued that beneficiaries would “potentially” have to miss work, find childcare, pay for transportation, and visit various other organizations to find alternative options, which would be “extremely taxing” or “insensitive” to the people the organizations are meant to support. And some commenters were concerned that objecting beneficiaries might not be aware that alternative services exist or be able to identify those alternatives. Some commenters argued that the Agencies did not explain why low-income program participants would be better positioned than provider grantees to identify alternatives. These commenters argued that the Agencies' proposals to remove the alternative provider notice-and-referral requirements were inconsistent with their determination in the 2016 final rule that faith-based providers would “generally be in the best position to identify alternative providers in reasonable geographic proximity and to make a successful referral of objecting beneficiaries to those alternative providers.” 81 FR 19366. Additionally, some commenters disagreed with placing the burdens of investigation on vulnerable beneficiaries, arguing that vulnerable beneficiaries were less likely to understand their rights than faith-based organizations were to understand their rights to seek and receive Federal funding. Some commenters argued that the Agencies could not assume that any faith-based providers would make referrals if the requirements were removed. The Council Chair suggested that such an assumption is comparable to the assumption that the religious freedom of faith-based organizations would be protected. Two umbrella groups of faith-based organizations who otherwise opposed removal of the referral requirement commented that group members were “willing and able” to provide referrals upon request; others believed they had a “moral obligation” to make referrals to alternative providers upon request. Some commenters argued that, even if referrals were rare, the alternative provider notice-and-referral requirements should still be maintained to prevent harm to objecting beneficiaries. They argued that placing a burden on even one beneficiary would be significant. One comment asserted that beneficiaries who have objected to faith-based providers in specific circumstances have sought referrals to alternative providers from organizations that share the beneficiaries' values rather than from the objected-to providers. As relevant here, the comment posited that beneficiaries may be less likely to seek alternatives—even from these sources outside the prescribed process—if the alternative provider notice-and-referral requirements were eliminated. The comment also suggested that religious people might desire referrals to like-minded organizations but lack the resources to find them. As a result, they might be forced to endure violations of their religious freedoms or forgo essential social services. Several commenters were concerned that, without the notice-and-referral requirements, beneficiaries would be forced to compromise their religious rights and identities. Some described this as a choice between accepting objectionable services and forgoing benefits. Others described it as a choice between accessing needed services and retaining religious freedom protections. Two umbrella groups of faith-based organizations expressed concern that members of minority religions seeking services from federally funded faith-based organizations of other religions could have their critical safety net benefits effectively conditioned on religious beliefs. Some of these commenters provided examples; one noted that veterans may be “forced” to accept ministry services from a religious group that they “revile.” Other examples are outlined in detail in the discussion of the comments in Part II.C.2.b and include harms to beneficiaries seeking opioid use disorder treatment, domestic violence shelters, and veteran job training services. Some commenters claimed that beneficiaries would be blindsided by the provider's religious character in the absence of notice that the provider was religious, religiously affiliated, or promoted religious values, which would violate the constitutional principle that American government must remain secular. Another commenter suggested, however, that notice was not necessary because beneficiaries often know about a provider's religious character from the organization's title and can pursue a secular provider if they are uncomfortable with the provider's religious character. Numerous commenters were concerned that beneficiaries, especially vulnerable beneficiaries, would lose access to benefits or forgo services without the benefits of notice and referral; some characterized the lack of notice and referral as a potentially insurmountable hurdle to beneficiaries' obtaining the help they need. They claimed that this would constitute a follow-on effect from all of the other harms discussed above, especially increased discrimination, lack of notice that discrimination based on religion is prohibited, absence of referrals, difficulty identifying alternatives, and lack of notice regarding alternatives and referrals. Some commenters were concerned that removing notice of the prohibition on discrimination would prevent beneficiaries afraid of such discrimination from seeking needed services. Other commenters were particularly concerned that shifting the burden of investigating alternatives onto beneficiaries with limited resources would leave them with no services or no ability to access services. One of these commenters claimed that “millions of Americans” might forgo vital services if they were unable to locate alternative providers. Multiple commenters emphasized that these protections were being denied to some of society's most vulnerable and marginalized, who have no choice but to use government-funded social services and may find it harder without the notice and referral to get the services they need. Some commenters characterized the Agencies' proposals to remove the requirements as “unconscionable and unethical,” “indefensible,” and “hurtful and discriminatory.” Commenters also argued that removing the notice-and-referral requirements would undermine the goals of reducing poverty, empowering low-income populations, and providing services to all who need them in the most effective and efficient manner possible, as articulated in existing Federal laws, regulations, and Executive Orders, including Executive Order 13279. Some commenters focused on the final rule's combined effect of removing the notice requirement, removing the referral requirement, and allowing for religious accommodations. They were concerned that such changes would permit or increase the risk of discrimination or denial of service based on beneficiaries' protected statuses, such as sex, sexual orientation, gender identity, religion, and race. Some commenters said that this rule would roll back Federal protections against religious discrimination and thereby embolden, rather than deter, such discrimination. A few commenters were concerned that these changes would increase the need for referral, such as if a faith-based provider denied services to an eligible beneficiary, at the same time that these changes made referrals optional and, therefore, less likely to occur. Some argued that there would be increased costs to State regulatory agencies from an increase in complaints alleging discrimination in the provision of social services and medical care. That comment also referenced State nondiscrimination laws. Similarly, other commenters claimed that the notice-and-referral requirements were even more critical because the Agencies proposed to expand religious exemptions and alter the requirements for faith-based recipients of indirect aid. Response: For the reasons that follow, the Agencies disagree with the view that removal of the notice-and-referral requirements will cause the harms alleged, including discrimination, proselytization, bias, and coercion; burdens of investigating alternatives; choice between protecting religious liberties and accepting services; forgoing services altogether; and difficulty reporting violations of the provisions regarding discrimination and explicitly religious activities. First, the public comments do not point to a single actual instance of past harm or negative consequence—with no evidence to support claims of discrimination, proselytizing, bias, coercion, or other harm—that occurred in these programs before the introduction of the alternative provider notice-and-referral requirements in 2016 and attributable to the absence of those requirements. That is addressed in greater detail in Part II.C.2.b. Indeed, the prohibition on explicitly (or inherently) religious activities in directly funded social service programs has existed in some form since Executive Order 13279 was issued in 2002, and commenters did not point to any actual harms from beneficiaries' lack of notice for the 14 years from 2002 through the issuance of the 2016 final rule. Additionally, the notice-and-referral requirements never applied to any USAID program or to USDA's Child Nutrition Programs, including the school lunch program, which USDA deemed indirect aid for purposes of exempting them from those requirements. 81 FR 19381, 19384-85. Yet numerous comments catalogued hypothetical harms to beneficiaries that would occur if the notice or referral requirements were removed from USAID's programs and USDA's school lunch program. No comment to USAID or USDA cited an instance of actual harm that occurred over the past four years in the absence of these requirements in USAID or USDA programs. Despite their failure to point to concrete examples of harm, some of the same commenters still presented the same parade of horribles that would befall beneficiaries if the Agencies eliminated their nonexistent notice-and-referral requirements. The Agencies do not find this speculation persuasive. Second, the Agencies believe that removing the notice-and-referral requirements will cause negligible, if any, risk of harm. Secular organizations use Federal funds to provide social services to the same needy and vulnerable beneficiaries as their faith-based counterparts, beneficiaries who are just as likely to be unaware of their rights or afraid of discrimination. Commenters do not claim any harm, however, from the absence of notice and referral by secular providers. The Agencies correctly determined in 2016 that secular organizations did not need to provide these notices in order to protect beneficiaries from any serious risk of harm. Now, they extend that same determination to faith-based organizations. Beneficiaries in all programs will be equally well aware of their rights and equally well positioned to protect and safeguard those rights, including by reporting any violations. Third, the allegations that removing the referral requirement will harm beneficiaries are undermined by the Agencies' experience; referrals were rarely, if ever, sought under the prior rule. In fact, the Agencies are not aware of any actual instance of a request for a referral under the 2016 final rule or under SAMHSA programs, as discussed in Part II.C.3.c, and commenters did not cite any instance of a beneficiary who had sought such a referral. Removing the referral requirement also does not mean that a provider will refuse to make a referral if a beneficiary requests one. Service providers remain free to continue to make voluntary referrals to other providers. Indeed, some faith-based providers said they were willing and able to provide alternative-provider referrals, including one comment with over 7,000 signatures professing a “moral obligation” to do so. Other publicly available resources and mechanisms for referral also exist, including like-minded organizations, locators, and hotlines. These resources and mechanisms are discussed in the following paragraphs. Fourth, the Agencies disagree that beneficiaries face any serious risk of harm from the process of finding alternatives themselves—either from any search costs or from choosing to forgo services completely. No evidence supports the speculative assertion that beneficiaries would need to miss work, obtain childcare, pay transportation costs, or visit various organizations in-person to find an alternative provider. Beneficiaries can learn about alternative [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-27084. Public record. Not legal advice.