December 16, 2020 at 3:17 pm EST | by Chris Johnson
Feds hastily make religious carve-outs to regulations before Trump’s exit
Federal agencies are hastily making religious carve-outs to regulations before President Donald Trump‘s exit.

With time running out for the Trump administration, federal agencies are hurriedly finalizing regulations granting leeway to religious institutions that are federal grantees and contractors, which critics say — and internal emails the Washington Blade obtained exclusively through a FOIA lawsuit suggest — blur the line between church and state and would enable anti-LGBTQ discrimination.

Two religious freedom rules that have gone into effect within the past two weeks — in addition to an initial production of emails sought by the Blade obtained under the Freedom of Information Act — confirms restructuring federal regulations to grant more leeway to religious institutions has been a central focus of the Trump administration throughout its four years.

Rachel Laser, CEO of Americans United for Separation of Church & State, said in a statement to the Blade she’s “disappointed, though not surprised” the Trump administration would act quickly to make these regulations final in lame duck before Trump leaves the White House.

“President Trump spent four long years pandering to his Christian nationalist base, which has too often succeeded at securing government policies that open the door to religion-based discrimination against LGBTQ people, women, religious minorities, nonreligious people and others,” Laser said. “These policies are a last-gasp effort by the outgoing administration to ignore the will of the people who rejected Trump’s policies on Nov. 3.”

One rule the Department of Labor made final last week, a proposed regulation that had been pending since August 2019, expanded the religious carve-out in rules prohibiting discrimination in employment practices, essentially allowing any federal contractor to claim an exemption to engage in workplace discrimination, including anti-LGBTQ discrimination. (Federal contractors are still barred from workplace discrimination under Title VII of the Civil Rights Act of 1964.)

On Monday, the Trump administration followed up by making final a whopping 400-page, nine-agency rule that has been pending since January instructing federal contractors to disperse grants and sub-grants to churches and religious organizations as well as secular groups.

Previously, there had to be secular alternatives available for indirect providers of social services, such as food kitchens or homeless shelters, if they require participation in religious activities as a condition of receiving services. Also, direct providers of services had to provide notice that beneficiaries are entitled to secular providers if they prefer, and have referrals available to secular alternatives for the services they provide. 

The Trump administration’s changes lift the notice and referral requirement for direct service providers as well as the need for secular alternatives when the funding goes indirectly to providers who require participation in religious activities. The LGBTQ legal group Lambda Legal criticized the rule change in a statement as “elevating ultra-conservative religious interests above everyone else’s basic rights.”

Because these regulations went through a rule-making process, the Biden administration won’t be able to easily undo them under the Administrative Procedure Act, which requires the U.S. government to undertake a deliberative process and engage with the public before making regulatory changes. It would take another rule-making process or several months or more than a year to undo them.

White House Deputy Press Secretary Judd Deere defended federal agencies making these rules final before Trump leaves office.

“The American people elected Donald Trump as president for a four-year term, not until Nov. 3, 2020,” Deere said. “President Trump’s first term goes until Jan. 20, 2021 as prescribed by the U.S. Constitution and he has every right to continue to advance policies that fulfill the commitments and promises he made to the country just as every president before him has done.”

FOIA dump reveals differing views on religious carve-outs

The Blade’s FOIA lawsuit, which was filed September in the District Court of D.C. and sought internal emails with words “religion” and “religious” from the Labor Department’s Office of Federal Contract Compliance Programs, yielded its first results last week.

The emails reveal Debra Carr, who has been serving as director of policy for OFCCP, appeared to want nothing to do with regulatory changes proposed by Trump political appointees and signaled that view — sometimes gently, sometimes not so gently — in the email chains.

According to her bio, Carr joined OFCCP after serving as an attorney for the U.S. Commission on Civil Rights. Among the reports she wrote were those evaluating the Native American healthcare system and the need to reauthorize the Indian Healthcare Improvement Act; assessing the effectiveness of the No Child Left Behind Act; and reviewing the usefulness of Executive Order 12898 and Title VI as tools for achieving environmental justice.

Carr also worked as a civil rights lawyer at the U.S. Justice Department White House office and headed a White House office representing the United States at the United Nations on issues related to racism and xenophobia, her bio says.

In response to language for a proposed 2017 executive order President Trump would sign on religious liberty, Carr, when pressed for input, writes in an email dated May 2, 2017: “I haven’t looked at what this means in application related to LGBT enforcement and the existing religious exemption.”

In an earlier part of the email chain, Carr says she and the solicitor of labor agree on some language components, but instructs officials she “won’t sign off unless you clear these joint comments.” Carr adds if that language isn’t cleared she “will reply ‘no comment, defer to SOL for legal opinion’ or just ‘no comment.’”

The clearance Carr sought, however, apparently never came. In a subsequent email, Carr makes good on her threat and writes, “OFCCP has no programmatic comment but defers to SOL for substantive legal review and comment.”

In a separate exchange, Carr expresses displeasure after she received as part of the comment process for rule changes an email from Ché Walker, who identifies as “Citizen of the United States of America” and urges the Labor Department not to change regulations to allow religious institutions that accept federal money to engage in discriminatory practices.

“Not sure why I got this,” writes Carr. When a staffer explains to her it came to her in error and should be directed elsewhere in the Labor Department, Carr replies, “This is the second one.”

The staffer replies OFFCP is coming up with “a blanket response” to allow her to point respondents to the right portal, but Carr wasn’t having it.

“Sorry, no time to reply to them I’ve got enough email in my inbox to get through,” Carr writes. “As long as the NPRM is correct you guys are covered.”

The Labor Department didn’t respond to a request for comment for this article, nor did Carr through the Labor Department.

Many emails in the 175-page initial production are heavily redacted. The Labor Department concealed personal contact information and cited deliberative language claims to redact other content.

FOIA, however, was amended in 2016 to clarify federal agencies cannot redact deliberative language without demonstrating revealing that information would cause “foreseeable harm.” The Blade, represented by attorneys at the Reporters Committee for Freedom of the Press, will have the opportunity to challenge these redactions once the FOIA production is complete.

One such heavily redacted email reveals OFCCP was planning to have a meeting with the National Center for Transgender Equality on Aug. 28, 2018. That would have been shortly after the Labor Department issued a memo seeking to bring regulations in compliance with the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, which critics at the time said was unnecessary because the narrow ruling applied only to the specifics of that case.

Carr alerts OFFCP officials, including OFFCP Director Craig Leen, to potential issues NCTE may bring up at the meeting, but those talking points are completely redacted in the FOIA production. NCTE didn’t respond to repeated requests from the Blade to comment on this planned meeting.

A transgender advocate familiar with the meeting, who spoke on condition of anonymity, said other LGBTQ and civil rights groups were in the meeting, which was focused on the 2018 directive.

“As I recall, the directive was incredibly vague and sweeping in its language so we came with a bunch of tough questions, which may have been what this email was about,” the advocate said. “Those questions would’ve been pretty much along the lines of what was aired in comments on the rule that they just finalized.”

The transgender advocate said Leen was “still pretty new there,” so part of the meeting was to “get a sense of how bad he would be, and make sure he understood the legal and political risks of going backwards -— as advocates often do when new agency leaders come in whom they can presume to be hostile to their priorities.”

The FOIA dump also reveals Sen. James Lankford (R-Okla.), a longtime opponent of LGBTQ non-discrimination policies who this year cited J.K. Rowling on the Senate floor to block consideration of the Equality Act, has been the driving force pushing the Trump administration to adopt more expansive religious exemptions.

One Feb. 18, 2018 email from an OFFCP staffer details the correspondence between Lankford’s staff and the agency. According to the email, Lankford sent a letter in June 2017 on the scope of the religious exemption for federal contractors, then when OFFCP responded, Lankford’s legislative counsel, Sarah Seitz, responded in July 2017 “she had concerns and questions with the response.”

After former U.S. Attorney General Jeff Sessions issued in October 2017 guidance directing federal agencies to include religious liberties in enforcement of laws and policies, including non-discrimination provisions, Seitz sent another letter seeking clarification on the same religious exemption in light of the guidance, the email says.

Additional correspondence followed, as well as a meeting between OFFCP officials and Lankford staff on Jan. 17, 2018, and another meeting that was tentatively planned for March 6, 2018, the email says.

Despite Lankford’s push to expand the religious exemption for federal contractors, additional emails in the FOIA dump reveal the agency and the senator had difficulty identifying a single religious institution that wanted the change, or at least publicly wanted to be the face of it.

In response, a Jan. 17, 2018 email from one staffer who wanted “to ensure all faith-based organizations that are contractors/potential contractors are invited” to the Lankford meeting, another staffer asks if the senator had mentioned “any particular religious entities during your meeting that are federal contractors and that we should invite to the contractor stakeholder session.”

“No, Sen. Lankford did not specify any faith-based organization in particular,” the OFCCP staffer replied, then continued with language the Labor Department redacted in the FOIA dump as deliberative.

Lankord’s office didn’t respond to the Blade’s request to comment on why the senator has been so insistent on pushing for religious exemptions.

One religious institution revealed in the FOIA dump to have come forward to a suggest a desire for an expanded exemption under non-discrimination regulations was Brigham Young University, which has a history of anti-LGBTQ discrimination.

Steven Sandberg, deputy general counsel for BYU, appears in a March 6, 2018 email to test the waters to see how far it can get with the religious exemption by complaining its contracts are “mostly done by contracting officers (not lawyers) in the offices of acquisition/grants/research/etc.”

“After several attempts like these, in 2016 we stopped trying to add this type of language in the contracts in because they either slowed or completely stopped the contracting process, and they rarely resulted in revised language being added to the contracts,” Sandberg wrties. “We decided instead to carry the risk and be ready to defend ourselves if challenged.”

Sandberg points out the religious exemption to employment non-discrimination rules for federal contractors during the Obama years allowed religious institutions to favor co-religionists in hiring practices. Suggesting BYU interprets that exemption broadly in a way that might conflict with rules, including LGBTQ non-discrimination requirements, Sandberg writes, “BYU continues to carry the risk that ‘of a particular religion’ will be construed narrowly and adversely to BYU.”

Copied on the email exchange is a lawyer for Becket Law, a legal firm that seeks to enhance religious liberty claims and currently has pending before the U.S. Supreme Court a case that seeks a First Amendment right for Catholic Social Services to reject same-sex couples in taxpayer-funded foster care despite having signed a contract vowing not to engage in anti-LGBTQ discrimination.

Brigham Young University didn’t respond to a request for comment for this article, nor did the Becket Law firm.

More religious carve-outs could be on the way

Additional opportunities remain for the Trump administration to finalize rules weakening non-discrimination requirements in the name of religious freedom.

One pending regulation, if made final, would eliminate an Obama-era requirement that recipients of federal grants adhere to non-discrimination principles, effectively allowing these grantees to discriminate in adoption and health care settings against LGBTQ people. The Trump administration proposal would allow adoption agencies that receive federal funds to refuse to place children with same-sex parents.

Another regulation, proposed by the Department of Housing & Urban Development in July, would weaken Obama-era regulations to allow taxpayer-funded homeless shelters to refuse to accept transgender people seeking refuge consistent with their gender identity, including on the basis of religious grounds. Rep. Jennifer Wexton (D-Va.) has been outspoken against the proposal.

It remains to be seen whether the Trump administration will make final either regulation. The White House had no comment.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

Comments are closed
© Copyright Brown, Naff, Pitts Omnimedia, Inc. 2021. All rights reserved.