November 2, 2020
The presidential election will impact faith-based nonprofits in many ways. One of the most important involves the President’s authority to, with Senate consent, appoint the individuals who lead key federal agencies.
Under the leadership of these appointees, many agencies have the authority to make rules and issue guidance that will significantly affect the day-to-day operations of faith-based nonprofits.
The following four examples are areas where different executive agencies have authority to make rules and issue guidance. As shown by the examples, important matters are at stake for faith-based nonprofits.
1. Religious Liberty Protections and Federal Agencies. The Department of Justice (“DOJ”) led by the United States Attorney General, has the authority to issue “advice and opinion upon questions of law” to the President and other federal agencies.
This authority to issue “advice and opinion on questions of law” includes advising the President and agencies on questions related to the scope of First Amendment religious liberty protections. These First Amendment interpretations can directly and indirectly impact faith-based nonprofits.
An example of the DOJ’s impact is this memorandum instructing federal agencies on key principles of religious liberty law and requirements for agency leaders to take specific actions to ensure compliance with the First Amendment.
2. Faith-based Schools and Federal Grants. The responsibilities of the Department of Education include oversight of the federal aid programs which support state and local educational institutions.
This role can have a significant impact on faith-based educational institutions, particularly those in low-income areas which rely on grants to provide education to students in need.
For example, the Department of Education recently released guidelines to ensure that non-public schools, such as faith-based schools, receive funding under the Coronavirus Aid, Relief, and Economic Security Act (or more popularly known as the “CARES” Act).
3. Building a Faith-Based Workforce. The Department of Labor promotes the welfare of workers, including wages, working conditions, and equality in opportunities.
Many faith-based organizations are subject to some or all of the Department of Labor’s regulations. These regulations can impact the freedom of religious organizations to recruit and maintain workforces of individuals who believe in the religious mission of the organization.
In 2015, the Department of Labor exercised this authority by proposing a rule related to the participation of faith-based social services programs in federal financial assistance programs.
4. Freedom of Conscience and Bioethics. The Department of Health and Human Services (“HHS”) offers programs to promote the health of all Americans. In connection with this mission, the Department has broad authority to issue rules which implicate matters of conscience or religious conviction related to bioethics. One of the most well-known rules issued by HHS under this authority was the contraceptive mandate. In its earliest form, this mandate required faith-based employers to participate in conduct inconsistent with their religious beliefs.
Elections have consequences, which is why faith-based leaders should be prepared to navigate new rules and federal guidance issued by administrative agencies. Doing so begins by making sure your nonprofit has taken the necessary steps to secure, protect, and communicate its religious identity. Failure to do so can result in your religious organization being a RINO, or “religious-in-name-only” nonprofit. This means a lower likelihood of prevailing in court based on existing religious liberty protections should you encounter issues related to federal rules and guidance that directly impact the day-to-day operations of your faith-based nonprofit.
Religious Liberty, Employment, and Recent Supreme Court Opinions, by Napa Legal Staff
It’s Time for an Audit, by Lee Cotugno (Member of Napa Legal’s Employment Working Group)
The Ministerial Exception: How Catholic Nonprofits Can Safeguard Their Right to Choose Their Own Leaders, by Kaytlin Roholt Lane (Member of Napa Legal’s Legal Strategy Working Group)