Editors’ Note: Stanley Carlson-Thies provides historical background for President Biden’s recent (re-)establishment of the White House Office of Faith-Based and Neighborhood Partnerships.
President Biden by Executive Order 14015 (Feb. 14, 2021) created a White House office to promote government partnerships with civil society organizations, both religious and secular, to maximize the effectiveness of services for people in need. The EO was accompanied by a fact sheet that styled the action as the reestablishment of President Obama’s White House Office of Faith-Based and Neighborhood Partnerships. Indeed, the name is the same and the new office is headed by Melissa Rogers, who directed President Obama’s office in his second term. Given the Trump administration’s de-emphasis of the partnership initiative—it set up a White House partnerships advisor, not office, and made regulatory changes that departed from the consensus rules for such partnerships—the Biden action indeed appears restorative, turning to the Obama administration for inspiration and personnel. However, to best understand what the new administration has proposed and the challenges it faces, we should take a longer view. Consider the Biden plan the fifth phase of major changes in public policy, church-state principles, and civil society that stretches back to the Clinton administration.
A White House Office is the high-profile element, but the core of the faith-based or partnership initiative is a vision and a set of legal rules. The vision is that government—at every level—can best achieve its purposes of providing social services, fostering development, and promoting social justice by working with and funding organizations rooted in communities. These organizations, many of them inspired and shaped by religion in varied ways, have always been significant, although not necessarily well-understood, elements of the nonprofit sector. Yet such faith-based and community-based organizations were sidelined as the federal and state governments from the mid-1960s ramped up their activities to respond to various needs by awarding funds to nonprofits to deliver services. Distinctly religious—“pervasively sectarian”—providers were ineligible, thanks to the reigning “no aid to religion” reading of the First Amendment. Rigid requirements accompanying government funding treated grantees as “nonprofits for hire,” mandating the abstract and uniform characteristics of government programs and pushing away providers characterized by distinctive identities, spiritual or religious dimensions, social-entrepreneurial creativity, and connections of trust.
By the early 1990s, many policy makers, social analysts, and government officials were looking for an alternative. Bill Clinton ran for president in 1992 promising to “end welfare as we know it,” making changes touted by their backers as creating more effective help. The U.S. Supreme Court was shifting from the “no-aid-to-religion” framework to a neutrality or equal treatment requirement for government funding that allowed religious organizations an equal opportunity to compete for funding. Policy discussions in Washington, DC, and stories in the media often referenced programs run by churches and social entrepreneurs that had unexpected positive outcomes (a few years later, Rev. Eugene Rivers was on the cover of Newsweek as “Savior of the Streets” of Boston). Bills in Congress proposed a range of ways that the federal government might support and utilize these civil society change agents.
The ferment resulted in the inclusion of the Charitable Choice provision in the sweeping welfare reform bill signed into law by President Clinton in 1996. Charitable Choice specified the equal eligibility of faith-based organizations for federal funding—no bias either against or for religious applicants; provided specific protections for the religious identity of faith-based grantees and for their voluntary religious activities; and provided specific protections for beneficiaries, who could not be discriminated against because of their religion or lack of it, could not be coerced into religious activities; and could request an alternative to a religious provider. Faith-based providers could accept federal funds without suppressing their religious character and yet persons entitled to services could receive them without religious discrimination or proselytizing, a both-and arrangement that attracted a broad range of support.
This enactment of Charitable Choice was the foundational development: the reform of the funding rules made it possible for faith-based organizations to collaborate with government without suppressing their distinctive character as religious civil society organizations. It put into law a different way for the government to relate to service providers: as different kinds of entities working together toward a common outcome. This was more like a private philanthropy supporting an organization to achieve an end shared by the donor and the grantee than a government agency buying a quantity of standardized commodity. The new rules embodied and implemented that new partnership vision. The federal welfare funds were block-granted to the states, and Charitable Choice came with the money. Several other laws were adopted during the Clinton administration with the same rules included. When Vice President Al Gore ran for President against George W. Bush, it was Gore who first advocated extending the Charitable Choice principles broadly to federal social service spending.
Yet it was Bush (who as Texas governor had enthusiastically welcomed the Charitable Choice requirements of federal funding) who moved into the White House, and he almost immediately announced the creation of the White House Office of Faith-Based and Community Initiatives to lead the executive branch 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 . . .” (Executive Order 13199, Jan. 29, 2001). Bush also directed the creation of counterpart Centers for Faith-Based and Community Initiatives in major federal departments to plant the partnership vision where federal programs are designed and award decisions are made. An effort to enact a law applying Charitable Choice broadly was unsuccessful, but Bush (accepting the constitutionality of the Charitable Choice principles) used the regulatory process to promulgate Equal Treatment regulations modeled on Charitable Choice across the major federal departments. Notably, the Bush administration affirmed that existing law protected the right of religious organizations to utilize religious criteria in hiring staff.
As the Democratic presidential candidate in 2008, Barack Obama said the social problems the federal government sought to address required an “all hands on deck” approach, and he declared that he would maintain the Bush partnership initiative after amending the rules to eliminate religious hiring by grantees and to ensure no federal spending on religious activities. He renamed the initiative as the White House Office of Faith-Based and Neighborhood Partnerships. And he created a new Advisory Council for Faith-Based and Neighborhood Partnerships to advise on partnerships but also more generally to bring a civil society vision to government policymaking. One of its key initial tasks was to evaluate the constitutionality of the Bush partnership rules, which it affirmed with a few recommendations for changes. A significant change accepted by President Obama was to modify the Equal Treatment regulations so that all beneficiaries, not just those in the few Charitable Choice programs, had the right to request an alternative to a faith-based provider and to receive notice of their religious protections. This change became part of the regulations in April, 2016. The Obama partnerships initiative, in addition, stressed more than did the Bush version non-financial partnerships, as when government agencies and private organizations coordinate their efforts to prepare for natural disasters or collaborate to promote public health initiatives. And, despite candidate Obama’s stated views, President Obama generally maintained the freedom of religious grantees to consider religion in making employment decisions.
President Donald Trump, although declaring himself a champion of religious freedom and the great friend of evangelical Christians, a community noted for its wide range of faith-based service organizations, waited until May 3, 2018, fifteen months after he became President, to announce by Executive Order 13831 that he was endorsing the partnership initiative. He gave it a new name, the “Faith and Opportunity Initiative,” and, rather than open his own White House partnership office, created the position of partnership Advisor in the Office of Public Liaison, the White House unit that coordinates with supportive coalitions and mobilizes public support—a post that was filled only months later and that never provided leadership.
Yet this was a fourth version of the partnership initiative. The Equal Treatment regulations remained in effect and, notwithstanding the neglect of the White House, the Centers in the major departments continued functioning. Some of them innovated social policy, such as the work of the HHS Center to better engage faith-based organizations in the federal response to the opioids and mental health crises. And the Trump administration initiated further amendments to the Equal Treatment regulations. Some of the changes, in response to U.S. Supreme Court decisions, strengthened the place of faith-based organizations among the federal government’s partners. Unfortunately, other changes weakened protections for beneficiaries, notably eliminating the Obama administration’s expansion of the right to an alternative and to notice of rights. The Trump administration’s stated intent was to lift the unequal burden placed on faith-based providers—only they had to provide referrals and notice. Yet, as some evangelical organizations, as well as other commenters noted, the unequal burden could have been lifted in a way that preserved beneficiaries’ rights by requiring all grantees to offer referrals and provide notice, while making it the task of government, and not grantees, to locate a suitable alternative provider and to administer the referrals. To be sure, no change was made to the prohibition on using grant funding to pay for religious activities nor to the obligation that providers not engage in religious discrimination nor religious coercion. Yet the referral and notice requirements were valuable signals of the government’s commitment to protecting the rights of all and thus key elements of the two-decade consensus on funding rules.
The Biden partnership Executive Order and fact sheet are silent about the Trump initiative, as if it had not existed, except for a curt “revocation”—cancellation—of Trump’s partnership Executive Order. Melissa Rogers, the Executive Director of the reestablished Office of Faith-Based and Neighborhood Partnerships, though, was a chief critic of the Trump administration’s weakening of beneficiary protections and it seems certain that, either through the regulatory process or Congress’s right to nullify recently adopted regulations, this change will be reversed, reaffirming the broad consensus about church-state principles. The Centers in various departments will be revivified, with coordination and backing from the White House Partnerships Office. The Biden Executive Order uses almost the exact words of the Bush Executive Order to specify that his Partnerships Office will lead “the Federal Government’s comprehensive effort to enlist, equip, empower, and expand the work of community-serving organizations, both faith-based and secular . . . .” Yet, all of this will not make version 5 (Biden) of the partnership initiative identical with version 3 (Obama) or version 2 (Bush).
As Melissa Rogers and E. J. Dionne noted in their comprehensive and thoughtful set of recommendations about religion and public life, issued before last November’s presidential election, the partnership initiative must be responsive to an increasingly diverse set of organizations and citizen commitments: interfaith and resolutely secular service organizations as well as those inspired by one or another religion, “nones” and atheists as well a great variety of religious believers. How all of the different and sometimes conflicting requirements and perspectives can be accommodated remains to be seen.
They noted, too, the imperative of making the federal religious freedom stance and its partnership initiative more inclusive of non-white organizations and interests. Achieving significant change will not be easy. It is striking that President Biden’s Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” issued his first day in office, completely overlooked the vital role of the Partnerships Office and Centers in expanding partnerships with minority organizations in order to reduce barriers that make it difficult for underserved communities and individuals to access federal benefits and services.
The Biden version 5.0 faces at least two other major challenges. Continuing a trend from the Trump initiative, the reestablished White House Office of Faith-Based and Neighborhood Partnerships is rooted not only in the Domestic Policy Council—this is new and gives it an important voice in the administration’s policymaking—but also in the Office of Public Engagement, the renamed White House unit for outreach and coalition maintenance. To be sure, the partnerships initiative cannot be a matter simply of legal details, grant awards, and program redesign, but requires a broader interface between the federal government and civil society organizations. Yet there is a great danger here of pressing secular and religious organizations to become not only the government’s partners in service when their respective goals coincide but also its policy cheerleaders.
And not least of the challenges is for this administration is to combine its strong commitment to advancing LGBTQ and reproductive rights with a strong commitment to devising partnership policies that do not exclude the many faith-based organizations that do not share its stances on human sexuality and abortion. Many who need services also do not share the administration’s views on these matters. A morally and religiously diverse society can best be served by diverse services. The Biden partnerships initiative, version 5.0 of this vital innovation in government policy, must devise ways to protect the rights of all citizens and organizations with respect to these issues, just as the earlier versions devised ways to protect the rights of religious and nonreligious citizens and organizations with its Charitable Choice and Equal Treatment rules.
Stanley Carlson-Thies is director of the Institutional Religious Freedom Alliance at the Center for Public Justice. He is co-author of Free to Serve: Protecting the Religious Freedom of Faith-Based Organization (Brazos, 2015), served in the Bush White House faith-based office, and advised the Obama faith-based initiative. He holds a PhD in political science from the University of Toronto.