City Journal: “Throughout American history, religious organizations have cooperated with our federal, state, and local governments to deliver essential medical and social services to the poor and downtrodden. Faith-based charities, hospitals, and schools have long been cornerstones of our civil society and enjoyed the rightful protection of the Constitution. Recent regulations released by the Biden administration, however, will undermine these groups’ effectiveness and infringe upon their religious liberty.

The Biden administration’s new regulations, finalized on March 1, trace their roots to the George W. Bush administration’s “charitable choice” efforts. The Bush administration had promulgated guidance for all federal agencies in 2002 that sought to encourage faith-based charities’ participation in federal social-service programs. The Trump administration, partially in response to the Supreme Court’s recent Free Exercise cases, built upon those Bush-era efforts with 2020 guidance expanding participating providers’ religious-liberty protections.

Biden’s new rule reverses course, scaling back these groups’ religious freedom.

Two aspects of the new rule are particularly problematic. The first concerns the so-called “direct-indirect” funding distinction. The federal government’s longstanding rule has been that when a faith-based concern receives “direct federal financial assistance,” its services must be secular. When the organization gets so-called “indirect aid”—that is, when it receives federal funds from a private individual’s free choice—it can integrate religious content into its programming.

… When the Bush administration incorporated this distinction into its charitable-choice regulation decades ago, it assumed that the First Amendment’s Establishment Clause likely prohibited the government from directly funding explicitly religious programming. But recent Supreme Court decisions have undermined this assumption. The Court, most recently in the 2022 case Carson v. Makin, has held that the Free Exercise Clause bans the government from excluding providers from public programs, either because of their religious status or because their programing includes religious content. This calls into question Washington’s longstanding rule that recipients of “direct aid” must offer only secular services to participate in federal programs. Of course, because many faith traditions draw no distinction between “being religious” and “doing religious things,” asking faith-based groups to scrub their programs of religious content to participate in direct-aid programs presents them with what the Supreme Court in Trinity Lutheran Church v. Comer (2017) deemed an unconstitutional choice … Continue