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

The
new order’s most important move is requiring that secular alternatives
be made available to clients who don’t want to go to a faith-based
organization (FBO). So if you prefer not to send your child to a mosque
(or a synagogue, or a church) for his government-funded after-school
program, you don’t have to do so. In fact, the Bush White House was not
opposed to such a requirement; it was the states that objected. But if
we’re going to tap religious institutions to provide government
benefits, the mandate’s got to be there.

Much of the order is
non-controversial. I mean, who’s going to object to requiring that
federal programs be run “in accordance with the Establishment Clause and
the Free Exercise Clause”? Or that the process of making awards be
transparent and non-political?

There will be some church-state
separationists unhappy with allowing FBOs to provide their services in
places where religious paraphernalia are present. This was a very big
issue back in the nineties, but it may be that in the new millennium
we’re less disturbed by the marks and traces of other peoples’ faith;
the task force voted in favor (though not unanimously) of letting this
happen. At the same time, there is a requirement that the actual service
provision be separated by time and place from explicitly religious
activities (though the nature of such separation is not specified).
Those eager for religious institutions to establish separate 501 (c) 3’s
for their social services will be disappointed–though it’s not clear
why a separate non-profit should ipso facto be less religious than its
parent organization. 

If there’s a sleeper provision in the
order, it’s the mandate that beneficiaries can’t be discriminated
against on religious grounds. This sounds anodyne, but U.S. civil rights
law provides that discrimination is not only a matter of intent but
also of effect. If an Orthodox Jewish provider in Brooklyn advertised
only in Yiddish and closed its doors on the Jewish Sabbath, it’s
arguable that it could be found to be religiously discriminatory. We’ll
have to wait to see how the rules are applied. 

The gaping hole
in the order is, of course, its silence on whether FBOs can discriminate
on religious grounds when they hire people to perform government-funded
services. The administration forbade OFANP and its Advisory Council
from even discussing the issue, kicking it instead over to the Justice
Department’s Office of Legal Council (whose head the Senate has still
not managed to confirm). Whether OLC ever gets around to pronouncing on
the subject may be doubted. Why wake up a sleeping dog when so many
others are yapping?

THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release November 17, 2010
EXECUTIVE ORDER
– – – – – – –
FUNDAMENTAL PRINCIPLES AND POLICYMAKING CRITERIA FOR PARTNERSHIPS WITH FAITH-BASED AND OTHER NEIGHBORHOOD ORGANIZATIONS
By
the authority vested in me as President by the Constitution and the
laws of the United States of America, and in order to guide Federal
agencies in formulating and developing policies with implications for
faith-based and other neighborhood organizations, to promote compliance
with constitutional and other applicable legal principles, and to
strengthen the capacity of faith-based and other neighborhood
organizations to deliver services effectively to those in need, it is
hereby ordered:
Section 1. Amendments to Executive Order 13279.
Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws
for Faith-Based and Community Organizations), as amended, is hereby
further amended:
(a) in section 1, by striking subsection (e), and inserting in lieu thereof the following:
“(e) ‘Specified agency heads’ means:
(i) the Attorney General;
(ii) the Secretary of Agriculture;
(iii) the Secretary of Commerce;
(iv) the Secretary of Labor;
(v) the Secretary of Health and Human Services;
(vi) the Secretary of Housing and Urban Development;
(vii) the Secretary of Education;
(viii) the Secretary of Veterans Affairs;
(ix) the Secretary of Homeland Security;
(x) the Administrator of the Environmental Protection Agency;
(xi) the Administrator of the Small Business Administration;
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(xii) the Administrator of the United States Agency for International Development; and
(xiii) the Chief Executive Officer of the Corporation for National and Community Service.”;
(b) by striking section 2, and inserting in lieu thereof the following:
“Sec.
2. Fundamental Principles. In formulating and implementing policies
that have implications for faith-based and other neighborhood
organizations, agencies that administer social service programs or that
support (including through prime awards or sub-awards) social service
programs with Federal financial assistance shall, to the extent
permitted by law, be guided by the following fundamental principles:
(a)
Federal financial assistance for social service programs should be
distributed in the most effective and efficient manner possible.
(b)
The Nation’s social service capacity will benefit if all eligible
organizations, including faith-based and other neighborhood
organizations, are able to compete on an equal footing for Federal
financial assistance used to support social service programs.
(c) No
organization should be discriminated against on the basis of religion or
religious belief in the administration or distribution of Federal
financial assistance under social service programs.
(d) All
organizations that receive Federal financial assistance under social
service programs should be prohibited from discriminating against
beneficiaries or prospective beneficiaries of the social service
programs on the basis of religion or religious belief. Accordingly,
organizations, in providing services supported in whole or in part with
Federal financial assistance, and in their outreach activities related
to such services, 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
attend or participate in a religious practice.
(e) The Federal
Government must implement Federal programs in accordance with the
Establishment Clause and the Free Exercise Clause of the First Amendment
to the United States Constitution, as well as other applicable law, and
must monitor and enforce standards regarding the relationship between
religion and government in ways that avoid excessive entanglement
between religious bodies and governmental entities.
(f) Organizations
that engage in explicitly religious activities (including activities
that involve overt religious content such as worship, religious
instruction, or proselytization) must perform such activities and offer
such services outside of programs that are supported with direct Federal
financial assistance (including through prime awards or sub-awards),
separately in time or location from any such programs or services
supported with direct Federal financial
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assistance, and
participation in any such explicitly religious activities must be
voluntary for the beneficiaries of the social service program supported
with such Federal financial assistance.
(g) Faith-based organizations
should be eligible to compete for Federal financial assistance used to
support social service programs and to participate fully in the social
service programs supported with Federal financial assistance without
impairing their independence, autonomy, expression outside the programs
in question, or religious character. Accordingly, a faith-based
organization that applies for, or participates in, a social service
program supported with Federal financial assistance may retain its
independence and may continue to carry out its mission, including the
definition, development, practice, and expression of its religious
beliefs, provided that it does not use direct Federal financial
assistance that it receives (including through a prime award or
sub-award) to support or engage in any explicitly religious activities
(including activities that involve overt religious content such as
worship, religious instruction, or proselytization), or in any other
manner prohibited by law. Among other things, faith-based organizations
that receive Federal financial assistance may use their facilities to
provide social services supported with Federal financial assistance,
without removing or altering religious art, icons, scriptures, or other
symbols from these facilities. In addition, a faith-based organization
that applies for, or participates in, a social service program supported
with Federal financial assistance may retain religious terms in its
name, select its board members on a religious basis, and include
religious references in its organization’s mission statements and other
chartering or governing documents.
(h) Each agency responsible for
administering or awarding Federal financial assistance for social
service programs shall offer protections for beneficiaries of such
programs pursuant to the following principles:
(i) Referral to an
Alternative Provider. If a beneficiary or prospective beneficiary of a
social service program supported by Federal financial assistance objects
to the religious character of an organization that provides services
under the program, that organization shall, within a reasonable time
after the date of the objection, refer the beneficiary to an alternative
provider.
(ii) Agency Responsibilities. Each agency responsible for
administering a social service program or supporting a social service
program with Federal financial assistance shall establish policies and
procedures designed to ensure that (1) appropriate and timely referrals
are made to an alternative provider; (2) all referrals are made in a
manner consistent with all applicable privacy laws and regulations; (3)
the organization subject to subsection (h)(i) notifies the agency of any
referral; (4) such organization has established a process for
determining whether the beneficiary has contacted the alternative
provider;
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and (5) each beneficiary of a social service program
receives
written notice of the protections set forth in this subsection prior to
enrolling in or receiving services from such program.
(i) To promote
transparency and accountability, agencies that provide Federal
financial assistance for social service programs shall post online, in
an easily accessible manner, regulations, guidance documents, and
policies that reflect or elaborate upon the fundamental principles
described in this section. Agencies shall also post online a list of
entities that receive Federal financial assistance for provision of
social service programs, consistent with law and pursuant to guidance
set forth in paragraph (c) of section 3 of this order.
(j) Decisions
about awards of Federal financial assistance must be free from political
interference or even the appearance of such interference and must be
made on the basis of merit, not on the basis of the religious
affiliation of a recipient organization or lack thereof.”;
(c) by striking section 3, and inserting in lieu thereof the following:
“Sec. 3. Ensuring Uniform Implementation Across the Federal Government.
In
order to promote uniformity in agencies’ policies that have
implications for faith-based and other neighborhood organizations and in
related guidance, and to ensure that those policies and guidance are
consistent with the fundamental principles set forth in section 2 of
this order, there is established an Interagency Working Group on
Faith-Based and Other Neighborhood Partnerships (Working Group).
(a)
Mission and Function of the Working Group. The Working Group shall meet
periodically to review and evaluate existing agency regulations,
guidance documents, and policies that have implications for faith-based
and other neighborhood organizations. Where appropriate, specified
agency heads shall, to the extent permitted by law, amend all such
existing policies of their respective agencies to ensure that they are
consistent with the fundamental principles set forth in section 2 of
this order.
(b) Uniform Agency Implementation. Within 120 days of the
date of this order, the Working Group shall submit a report to the
President on amendments, changes, or additions that are necessary to
ensure that regulations and guidance documents associated with the
distribution of Federal financial assistance for social service programs
are consistent with the fundamental principles set forth in section 2
of this order. The Working Group’s report should include, but not be
limited to, a model set of regulations and guidance documents for
agencies to adopt in the following areas:
(i) prohibited uses of
direct Federal financial assistance and separation requirements; (ii)
protections for religious identity; (iii) the distinction between
“direct” and “indirect” Federal financial assistance; (iv) protections
for beneficiaries of social service programs; (v) transparency
requirements,
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consistent with and in furtherance of
existing open government initiatives; (vi) obligations of
nongovernmental and governmental intermediaries; (vii) instructions for
peer reviewers and those who recruit peer reviewers; and (viii) training
on these matters for government employees and for Federal, State, and
local governmental and nongovernmental organizations that receive
Federal financial assistance under social service programs. In
developing this report and in reviewing agency regulations and guidance
for consistency with section 2 of this order, the Working Group shall
consult the March 2010 report and recommendations prepared by the
President’s Advisory Council on Faith-Based and Neighborhood
Partnerships on the topic of reforming the Office of Faith-Based and
Neighborhood Partnerships.
(c) Guidance. The Director of the Office
of Management and Budget (OMB), following receipt of a copy of the
report of the Working Group, and in coordination with the Department of
Justice, shall issue guidance to agencies on the implementation of this
order, including in particular subsections 2(h)-(j).
(d) Membership
of the Working Group. The Director of the Office of Faith-Based and
Neighborhood Partnerships and a senior official from the OMB designated
by the Director of the OMB shall serve as the Co-Chairs of the Working
Group. The Co-Chairs shall convene regular meetings of the Working
Group, determine its agenda, and direct its work. In addition to the
Co-Chairs, the Working Group shall consist of a senior official with
knowledge of policies that have implications for faith-based and other
neighborhood organizations from the following agencies and offices:
(i) the Department of State;
(ii) the Department of Justice;
(iii) the Department of the Interior;
(iv) the Department of Agriculture;
(v) the Department of Commerce;
(vi) the Department of Labor;
(vii) the Department of Health and Human Services;
(viii) the Department of Housing and Urban Development;
(ix) the Department of Education;
(x) the Department of Veterans Affairs;
(xi) the Department of Homeland Security;
(xii) the Environmental Protection Agency;
(xiii) the Small Business Administration;
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(xiv) the United States Agency for International Development;
(xv) the Corporation for National and Community Service; and
(xvi) other agencies and offices as the President, from time to time, may designate.
(e)
Administration of the Initiative. The Department of Health and Human
Services shall provide funding and administrative support for the
Working Group to the extent permitted by law and within existing
appropriations.”; and
(d) by striking in the title, preamble, and section 1(c), “community” and inserting in lieu thereof “other neighborhood”.
Sec. 2. General Provisions.
(a)
This order amends the requirements contained in Executive Order 13279.
This order supplements, but does not supersede, the requirements
contained in Executive Orders 13198 and 13199 of January 29, 2001, and
Executive Order 13498 of February 5, 2009.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the OMB relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d)
This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other person.
BARACK OBAMA
THE WHITE HOUSE,
November 17, 2010.
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