A memo obtained by Fox News shows that the Department of Health and Human Services (HHS) is set to roll back the enforcement of religious freedom protections put in place by the Trump administration, raising further questions about the Biden administration’s views on religious liberty and rights of conscience.
Quick Facts
In 2017, the Trump administration took steps to increase religious liberty by providing guidelines to departments on the Religious Freedom Restoration Act (RFRA). HHS’s Office of Civil Rights (OCR) was granted authority to perform reviews and ensure that the RFRA was being followed.
An internal memo set to be released shows that HHS may be limiting that authority.
The memo says, “Prior to the delegation in 2017, no division was singularly responsible for the Department’s compliance with RFRA or the First Amendment.”
It continues,
“That model recognized that all components of HHS had a responsibility for compliance and that OGC [Office of General Counsel] was a central partner in providing key legal advice on RFRA and defending the Department when RFRA claims were raised. Rescinding the delegation to OCR does not lessen the commitment of the Department to compliance, but ensures that it is not misused by any one agency to enact a broad, proactive agenda.”
In a section on equity, the memo, penned by OCR Director Lisa Pino, reads,
“While nothing in RFRA legally restricts an agency to work proactively to address a complainant’s (or ‘would be’ complainant’s) religious needs or rights, there is a serious concern that such an approach broadens the effect of RFRA in a way that may not be legally required and while causing significant detriment to civil rights and public health protections.”
It also claims that “the prior Administration took an expansive view of the use of RFRA that resulted in negative impacts for underserved communities,” noting that the rule “clearly sent the signal to LGBTQ+ communities that the Department did not recognize their civil rights, including the right to marry.”
Those allegedly include “broad-based exemptions from nondiscrimination requirements to child welfare agencies challenges the ability of children and youth to obtain safe and loving foster and adoptive homes” with same-sex couples.
The memo continued, “While the Department will need to continue to comply with RFRA, removing this delegation demonstrates our belief that RFRA is meant to be a shield to protect the freedom of religion, not a sword to impose religious beliefs on others without regard for third party harms, including civil rights,”
In response, many are now criticizing Secretary Xavier Becerra and HHS. Roger Severino, who led OCR in the Trump administration, said, “HHS centralized authority over religious freedom claims because the laws weren’t being enforced and because that’s how we enforce every other civil right. Without dedicated staff responsible for investigating religious freedom complaints, HHS will return to trampling people’s rights as before — just ask the Little Sisters of the Poor.”
He added,
“Because Becerra was twice found to have violated conscience protection laws by OCR, he has no business deciding its religious freedom authorities given his massive conflict of interest. Becerra told Congress that he values religious freedom and that nothing will change with OCR concerning enforcement. His actions since then prove that he lied and this move would put an exclamation point on his anti-religious hostility.”
In early November, Biden’s Department of Labor announced that it too will reverse a rule put in place by the Trump administration, this one allowing religious groups who are also federal contractors to “make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government.”
Jenny Yang, director of the Office of Federal Contract Compliance Programs (OFCCP), said that the Trump rule allowed for discrimination against LGBTQ workers, and its recission would prevent “the exclusion of qualified and talented employees on the basis of protected characteristics. This ensures that taxpayer funds are not used to discriminate.”
Mary Best Waddell, Family Research Council’s director of Federal Affairs to Family and Religious Liberty, said the Biden administration is “couching its change in terms of following precedent and the law to promote religious freedom” and “doing the opposite.”
In a statement, she explained,
“This Department of Labor proposed rule curtails the ability of religious individuals and entities to live out their faith in the public square. This is one of many choices the Biden administration has made to sideline religious freedom and elevate other policies in its place…. Faith-based entities should not be denied government contracts and grants just because they want their employees to follow the same faith tenets they do. They should be allowed to freely exercise their religious freedom and run their business in accordance with the tenets of their faith.”
The Biden administration has demonstrated time and again that it believes that the First Amendment and its protections for religious freedom do not warrant any special consideration. In fact, in the State Department’s 45th human rights report, Secretary of State Antony Blinken repudiated “the unbalanced views” that religious liberty should be at the top of a hierarchy of human rights touted and defended by the United States, explaining, “There is no hierarchy that makes some rights more important than others.
He added that he “decisively” rejected the conclusions of the Commission on Unalienable Rights, which was set up under the Trump administration and received interfaith praise around the globe for its strong defense of religious liberty.
This recent decision by HHS adds to this trend, and it’s hardly a surprise since HHS Secretary Becerra’s history with religious liberty is suspect at best. As attorney general of California, Becerra defended a law that required pro-life pregnancy centers to display pro-abortion messages on billboards. In 2019, he sued the Little Sisters of the Poor, insisting that nuns be forced to pay for abortifacients and contraceptives. In April of this year, the Biden administration appealed a ruling in favor of the Little Sisters of the Poor against HHS.
HHS can dress up this memo in language that sounds like they are respecting religious liberty, but history, as well as their own words, show their intentions. HHS favors forcing adoption and foster care agencies to place children with homosexual couples, against their beliefs and judgment. Thankfully, the Supreme Court has already ruled on that issue, saying that Philadelphia-based Catholic Social Services could not be banned from the foster care system for refusing to place children with same-sex couples.
Pino claims that providing a religious freedom exemption challenges the ability of children to be placed in a loving foster care home, when in reality it is forcing religious agencies to choose between denying their convictions or denying children the care they need that limits that care.
It isn’t religious freedom advocates wielding the sword to force beliefs on others and violate civil rights, it is the Biden administration, and the First Amendment and RFRA should be the shield to stop them from infringing on the rights of religious Americans.
