The U.S. Department of Homeland Security (DHS) today is proposing a rule that would implement President Trump’s Executive Order No. 13831 (May 3, 2018) to remove regulatory burdens on religious organizations and ensure that religious and non-religious organizations are treated equally in DHS-supported programs. The proposed rule would ensure that DHS-supported social service programs are implemented in a manner consistent with the Constitution and other applicable federal law.
Specifically, the proposed rule provides instructions on religious liberty protections to the organizations that participate in DHS supported social service programs, including the U.S. Citizenship and Immigration Services (USCIS) Citizenship and Integration Program Grant, the Federal Emergency Management Agency’s (FEMA) Emergency Food and Shelter Program, FEMA Crisis Counseling, and FEMA Disaster Case Management.
“On behalf of DHS, I would like to thank the president for his leadership in helping to reverse the previous administration’s requirements discriminating against religious organizations by saddling them with unique regulatory burdens,” said Acting Secretary of Homeland Security Chad F. Wolf. “Our proposed rule recognizes that religious organizations are valuable partners in the federal government’s efforts to support the public with needed social services, and that they deserve every chance to compete equally on a level playing field for federal funding and not discriminated against simply because of their religious affiliation.”
Under current regulations that govern DHS-supported programs, religious providers of social services—but not other providers of social services—must make referrals under certain circumstances and must post notices regarding this referral procedure. These regulatory burdens had been required by then-President Obama’s Executive Order No. 13559 (Nov. 17, 2010). Consistent with President Trump’s Executive Order No. 13831 (May 3, 2018), today’s proposed rule would eliminate them from DHS regulations. As the Department’s proposed rule observes, these burdens were not required by any applicable law, and because they were imposed only on religious social service providers, they are in tension with recent Supreme Court precedent regarding nondiscrimination against religious organizations.
The proposed rule also would foreclose other unequal treatment of religious organizations by ensuring that they are not required to provide assurances or notices that are not required of secular organizations. By compelling religious organizations, but not secular organizations, to post special notices and make referrals, the alternative-provider requirements unequally placed burdens on religious organizations and cast unwarranted suspicion on them.
In addition, the proposed rule would clarify that religious organizations may apply for awards on the same basis as any other organization and that when DHS selects award recipients, DHS would not discriminate based on an organization’s religious affiliation. The proposed rule also clarifies that religious organizations participating in DHS-supported programs retain their independence from the government and may continue to carry out their missions consistent with religious freedom protections in the First Amendment.
The proposed rule incorporates the Attorney General’s 2017 Memorandum for All Executive Departments and Agencies, Federal Law Protections for Religious Liberty. That memorandum was issued pursuant to President Trump’s Executive Order No. 13798 (May 4, 2017), and it guides all federal administrative agencies and executive departments in complying with federal law.