Over the course of U.S. history, the policy pendulum has swung from one side to the other as different administrations take office, and that’s to be expected — up to a point. What is surprising, and infuriating, is that it is now swinging so wildly when it comes to the government’s treatment of religious organizations providing invaluable social services.

A rule jointly issued earlier this month by a whopping nine agencies of the Biden administration is a perfect example. The rule brazenly presumes that faith-based groups will discriminate against beneficiaries on the basis of religion, eliminates protections for faith-based groups in grant awards that were enacted during the Trump administration, completely ignores important Supreme Court decisions clarifying the obligation of the government to treat religious entities with fairness, and treats the right of religious employers to hire "co-religionists" like an empty promise. 

Some background: In 2002, President George W. Bush signed an executive order to facilitate federal financial assistance to faith-based and other community organizations that deliver social services. 

“The Nation's social service capacity will benefit if all eligible organizations, including faith-based and other community organizations, are able to compete on an equal footing for Federal financial assistance used to support social service programs,” explained Bush. He added that 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.” 

Note that this was not a license for religious groups to use public money to boost their proselytism. The Bush order mandated that “organizations that engage in inherently religious activities, such as worship, religious instruction, and proselytization, must offer those services separately in time or location from any programs or services supported with direct Federal financial assistance." Anyone receiving state-funded benefits from a faith group could not be forced to take part in its religious activities, but could do so voluntarily. On the other hand, the government could not impair the "independence, autonomy, expression, or religious character” of the groups receiving public money. 

Agencies within the Bush administration issued regulations putting these noble aspirations into practice. Then the pendulum swung. President Obama, following recommendations of his Advisory Council on Faith-Based and Neighborhood Partnerships, issued his own executive order imposing several new requirements. For example, faith-based recipients of federal funding now had to refer beneficiaries who objected to the religious character of their organization to alternative providers.

Enter President Trump, who issued his own executive order establishing a White House Faith and Opportunity Initiative “to assist faith-based and other organizations in their efforts to strengthen the institutions of civil society and American families and communities.” 

Among other changes, his administration reversed the Obama requirement that beneficiaries of publicly assisted faith-based activities must be provided with a secular alternative. Generally speaking, the independence of the relevant faith-based organizations from government was underlined and boosted. 

Then came Biden, whose own executive order properly noted, “Faith-based and other community-serving organizations are vital to our Nation’s ability to address the needs of, and lift up, low-income and other underserved persons and communities, notably including persons of color.” 

But what does that mean in practice? You may not be surprised to learn that the new Biden rule places faith-based organizations on the defensive and ignores crucial protections under federal law and the Constitution. 

When the rule was open for public comment, Eric Treene raised a red flag. Treene is an adjunct professor at The Catholic University of America’s Columbus School of Law, and a Fellow at The Catholic University of America’s Center for Religious Liberty, who previously served as special counsel for religious discrimination at the Civil Rights Division of the U.S. Department of Justice for 19 years spanning four administrations. 

Treene noted that federal employment law allows religious organizations to employ “individuals of a particular religion” to carry out their work. This exemption has been understood to allow religious employers to require “acceptance or adherence to religious tenets of the organization” from the people it employs. The new rule ignores this and instead suggests that “individuals of a particular religion” don't actually have to believe in it or agree with its teaching.

You can see where this is going, and the obvious implications for Catholic groups. They can be forced to employ people who vigorously oppose Church teaching on a range of subjects including the sanctity of life — who share, for example, our Catholic president’s wish to make late-term abortions as accessible as possible. No wonder the U.S. Conference of Catholic Bishops has voiced its anxiety about this particular change. 

Also, the USCCB notes that the Biden rule fails to recognize a “new array of cases from 2017 to the present” related to the Free Exercise Clause. “The Supreme Court now demands an exacting rule of equal treatment — that is, neutrality as between religious and nonreligious applicants for and recipients of a benefit or grant,” it points out. By failing to account for these developments, the rule “expressly singles out religion and hence religious providers for discriminatory treatment, a prima facie violation of the Free Exercise Clause.” 

Rachel Morrison and Eric Kniffin, scholars at the Ethics and Public Policy Center, concluded that “the proposed rule is a solution in search of a problem, making it arbitrary and capricious.” Their thorough analysis, one of several submitted to the government before the rule was issued, was predictably ignored.

So, here we are with yet another assault on the contributions of religious people and faith-inspired organizations. Yet again, an administration led by a practicing Catholic is presuming that faith is synonymous with discrimination. Perhaps by next year the pendulum will swing back in favor of faith in the public square.