On October 6, the U.S. Department of Justice issued new federal guidelines on religious liberty that appear to allow government agencies to transform this treasured American value into a license to discriminate. People For the American Way was rightly concerned, as the U.S. Department of Health and Human Services (HHS) followed suit on October 25 with a formal request for information about how HHS should change its rules to allow religious organizations to discriminate using government funds. PFAW joined Americans United for Separation of Church and State and other members of the Coalition Against Religious Discrimination in reminding HHS that their primary mission is to provide effective services to beneficiaries—not to discriminate against them. Our introduction follows below. Click here to download a PDF copy of the full November 24 letter.

The following comments to the Request for Information regarding “Removing Barriers for Religious and Faith-Based Organizations to Participate in HHS Programs and Receive Public Funding” (RFI) are submitted by the undersigned members of the Coalition Against Religious Discrimination (CARD).

We write to inform the Department that there are no “regulatory or other barriers” that it needs to remove nor actions it needs to take to “affirmatively accommodate” faith-based organizations that partner with the federal government. In fact, agency regulations already contain religious exemptions that are too expansive. For example, certain HHS regulations allow faith-based organizations to both take government funds and discriminate in hiring with those funds. This violates a core principle of religious freedom—no one should be denied a government-funded job because they are the “wrong” religion. We urge the Department to reject efforts to extend this flawed policy to other forms of discrimination in future HHS rules and regulations.

In particular, we urge HHS to deny requests to allow agency contractors and grantees to use religion as a reason to refuse to serve certain people who seek government-funded services. We also urge HHS to reject efforts to give faith-based organizations a categorical exemption that would allow them to cite religion to refuse to provide beneficiaries services they are supposed to receive within the government-funded program.

It is unfair and wrong to provide a blanket exemption under which beneficiaries would be denied taxpayer-funded services because the contractor or grantee that is supposed to provide the services cites religion. Federal religious freedom laws do not contemplate such categorical results, and in fact, a blanket religious exemption permitting such a refusal of service would raise serious constitutional concerns. Furthermore, such a blanket policy would run counter to the Department’s mission, which “is to enhance the health and well-being of Americans by providing for effective health and human services.”¹

HHS rules and regulations should serve as a shield to protect religious freedom, not a sword that allows harm to those seeking government services.

¹ U.S. Dep’t of Health & Human Services, Strategic Plan FY 2014–2018, Mission, http://bit.ly/2hPKkCo [hereinafter HHS Strategic Plan].