Subject: Background Press Call on New Rules to Protect Religious Freedoms

The White House
Office of the Press Secretary
FOR IMMEDIATE RELEASE
January 16, 2020


** BACKGROUND PRESS CALL
BY DOMESTIC POLICY COUNCIL DIRECTOR JOE GROGAN
AND SENIOR ADMINISTRATION OFFICIALS
ON NEW RULES TO PROTECT RELIGIOUS FREEDOMS

Via Teleconference
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8:03 A.M. EST

MR. CANTRELL: Thank you, Operator. Good morning, everyone, and happy National Religious Freedom Day. Thank you for joining this morning's briefing to preview new rules to protect religious freedom. This briefing will be conducted by Director of the Domestic Policy Council, Joe Grogan, along with subject-matter experts, [senior administration officials].

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Director Grogan's opening remarks will be the only remarks on the record. Opening statements by subject-matter experts that I just listed will be entirely on background attributable to "senior administration official."

Furthermore, the question-and-answer session to follow will be entirely on background regardless of who answers the question. All information is embargoed until the conclusion of the call.

And with that, I am happy to begin with DPC Director Joe Grogan.

DIRECTOR GROGAN: Thank you. Today, on National Religious Freedom Day, President Trump continues our efforts to make sure that people of faith and religious organizations continue to be invited to participate fully in civic and public life.

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The administration is taking three big actions to ensure that people of faith are always able to exercise their rights to religious expression. These actions are just the latest President Trump has taken to defend the constitutionally protected right to the free exercise of religion.

First, this morning, nine agencies will be releasing proposed rules that will ensure that religious and non-religious organizations are treated equally by the federal government, and that organizations are not discriminated against simply because they are religious in nature.

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These agencies -- the Department of Justice, U.S. Department of Agriculture, Department of Labor, Department of Homeland Security, Veterans Affairs, U.S. Agency for International Development, the Department of Health and Human Services, Department of Education, and Housing and Urban Development -- all worked together over many months to get this done. These agencies have done an incredible job in collaborating and also working together, and also working with the White House. Coordinating like this, just scheduling, is frequently difficult. And to make sure that everybody's governing statutes and regulations are all simpatico is not an easy task.

They will remove discriminatory regulatory burdens that the Obama administration placed on religious organizations that received federal funding, thereby ensuring that the federal government social service programs are implemented in a manner consistent with religious liberty protections in federal law, including the First Amendment and the Religious Freedom Restoration Act. Specifically, the regulations take down requirements of alternative provider notice and referral.

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Second, this afternoon, the President will host an event in the Oval Office celebrating the release of updated guidance on prayer in schools. This guidance lays out constitutional protections for religious expression in public elementary and secondary schools. It is required by law to be updated every two years, but it has not been updated since 2003.

President Trump is committed to making sure that people of faith, particularly children, are not subjected to illegal punishment or pressure for exercising their constitutionally protected rights.

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The guidance will remind school districts of the right to students, parents, and teachers, and will empower students and others to confidently know and exercise their rights. For example, a group of middle school students in Texas, who had gathered in lunch room to pray for a former classmate that recently was in a car accident, they were confronted by a principal who told them they needed to stop the prayer. The next day, the students attempted to pray again. The principal required the students to move behind the cafeteria curtain to an empty gym or outside, if they were going to pray. School district officials eventually reversed the principal's decision.

Finally, the Office of Management and Budget is releasing a memo that requires federal agencies to ensure that not just their own grant-making practices, but also the grant-making practices of state recipients of federal funding, comply with the First Amendment as interpreted by the Supreme Court.

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In a case decided in 2017 called Trinity Lutheran, the Supreme Court said that rules or grant terms that penalized or disqualify a religious person or organization from a right to compete for a public benefit, including a grant or contract because of the person's religious character, violate the Constitution's Free Exercise Clause.

The Trinity Lutheran case revolved around grants for playground resurfacing, and Trinity Lutheran was specifically excluded in that instance from participating in the -- from accessing the funds to resurface their playground to improve safety for children. It went all the way up to the Supreme Court, and the Supreme Court ruled that the Free Exercise Clause prohibited that type of discrimination.

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Even when no federal regulation or grant term penalizes or disqualifies grant applicants from participation based on their religious character, some state laws governing award for sub-grantees, including state constitutions, may limit sub-grantee participation in violation of the federal Constitution.

The most obvious example are Blaine Amendments, which are in existence in 37 states. These were originally passed out of anti-Catholic bias. The historical and legal record is very clear on that. And after Trinity Lutheran, it's obvious that these laws are unconstitutional, but many states have not fully implemented Trinity Lutheran in grant disbursements.

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In attempting to comply with state constitutions and laws, in certain instances, grantees may be discriminated against applicants for sub-grants on the basis on their religion, in violation of the Free Exercise Clause and the grantees' commitment to adhere to federal laws prohibiting discrimination.

So this memo from the Office of Management and Budget will tell grant-awarding agencies that they must ensure that the terms of the federal grants they award make clear that states or other public grantees may not condition sub-awards of federal grant money in a manner that would disadvantage grant applicants based on their religious character.

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The administration is committed to using every tool at its disposal to protect the rights of faith-based organizations to operate without unlawful government impediment.

Taken together, these actions exemplify the President's commitment to protecting free exercise for individual believers and for religious organizations.

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Thank you.

MR. CANTRELL: Next we have [senior administration official].

SENIOR ADMINISTRATION OFFICIAL: Thank you, Joe, for that introduction. And it's a pleasure to be here with you all.

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I'd like to provide a little bit more background on the nine-agency proposed rules. And as Joe mentioned, these rules are yet another step in the administration's commitment to giving religious organizations a full and equal seat at the table in federally funded programs and in allowing them to serve their communities.

So these rules will ensure equal treatment for religious organizations in several ways, the first of which, as Joe mentioned, is that they will remove the prior administration's alternative provider of notice and referral requirements. These requirements were imposed by an executive order by President Obama and then implemented in agency regulation.

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And, essentially, what they do is they require religious organizations, but not secular organizations, to post notices saying that they will refer beneficiaries, who object to their religious character, to alternative providers including secular providers if requested to do so. And they're required to then make those referrals upon request and to keep records of any referrals that they make.

In addition, agency-implementing regulations also require that notices contain certain rules that were applicable to faith-based providers participating in federal programs and that they provide a point of contact for the reporting of violations of rules.

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And, again, I want to stress that these notices -- these notice requirements applied only to faith-based or religious organizations. They were not applicable to secular organizations. There was no similar notice that required secular organizations to refer beneficiaries to alternative providers or to give them a point of contact for reporting violations.

And as Joe mentioned, President Trump's Executive Order 13831 removed the alternative provider requirements from the executive orders of the prior administration. In addition, I should note that these requirements were not required by any applicable law, only by executive order of the prior administration. In addition, they are intentioned with recent Supreme Court precedent, as Joe mentioned, and in particular the Trinity Lutheran decision.

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And, you know, removing these burdens that had been imposed only on religious organizations is consistent with the administration's broader deregulatory agenda. So that's the first way that this will ensure equal treatment for religious organizations.

Another way that it will ensure equal treatment is that it will prevent similar regulatory burdens from being imposed in the future on religious organizations. Religious organizations under the proposed rules would not be required to post notices or to give assurances that are not required of other secular organizations. And restrictions on use of grant funds would apply equally to both religious and non-religious organizations.

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A third way that it will ensure equal treatment is that it will -- you know, it will ensure a level playing field for federal funding opportunities. In particular, it will clarify that religious organizations can apply for awards on the same basis as any other organization; that the federal governments will not discriminate against religious organizations when it selects recipients for federal funding opportunities; that it won't discriminate on the basis of their religious exercise or their religious affiliation. It will also clarify that religious recipients of federal funding may continue to carry out their mission consistent with religious freedom protections in federal law.

Throughout the proposed rules, we'll ensure that federally supported programs are implemented in a manner that's consistent with religious liberty protections in federal law.

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And -- oh, the one other last thing that I should mention is it will further ensure equal treatment of religious organizations by adjusting the definition of indirect aid to better comport with Supreme Court precedent. And that adjustment in the definition will have the effect of ensuring that religious organizations are not subject to different rules simply because they choose to serve underserved communities. It won't make the definition of indirect aid hinge on the availability of secular providers, which, of course, varies of by geography.

So, again, that would have the effect of just ensuring that religious organizations are subject to the same rules, including when they choose to serve communities that are underserved.

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So, in all of these ways, the proposed rules will ensure that religious organizations are treated equally by the federal government; it will eliminate burdens that the prior administration had imposed on religious organizations; and they will ensure a level playing field for federal funding opportunities.

And I'll just leave -- yield the floor to the next speaker.

MR. CANTRELL: Thank you. [Senior administration official], you have anything to add?

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SENIOR ADMINISTRATION OFFICIAL: Not that much. Thanks very much. I'm happy to be here to -- I thought my colleague described it well. I mean, I just -- you know, before I turn it over to my colleague, who's going to take the lead on describing the prayer guidance, I just think it's worth noting that, as both my colleagues stressed, that the overriding principle that runs throughout both the regulations -- the changes we're making to the regulations and prayer guidance is, you know, quality of treatment. The Supreme Court made clear in Trinity Lutheran that you can’t impose special -- as general matter, you can't impose special disabilities on religious organizations based on religious character. And that's running throughout regulations.

With respect to the prayer guidance, similarly, the main idea, or at least one of the ideas, is that religious speech that goes on in schools needs to be treated equally to all other forms of speech and assembly. And I think my colleague will be able to describe exactly how that plays out and what we've done in the guidance.

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MS. CANTRELL: Great. Thank you. Next is [senior administration official].

SENIOR ADMINISTRATION OFFICIAL: Good morning. I'd like to add that the Department of Education is among the agencies that is engaging in a notice of proposed rulemaking regarding the religious liberty protections that my colleague described.

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In addition to the proposals that other agencies are making, the Department of Education is also proposing a regulation specifically related to religious student groups.

The Department would like to strengthen religious liberty protections for religious student groups at public institutions of higher education.

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One of the proposed regulations is that, as a condition of funding, a public institution of higher education cannot deny a religious student group the same benefits, privileges, and rights that other secular student groups have. This places religious student groups on equal footing with secular student groups at public institutions of higher education.

Separate and apart from the notice of proposed rulemaking, the department is doing something that is very unique to the Department of Education and it is fulfilling a statutory requirement to issue guidance on constitutionally protected prayer in public elementary and secondary schools.

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This guidance, as Joe mentioned, is statutorily required and it has not been updated since 2003 when it was first issued, even though the law requires that it be updated every two years.

The updated guidance provides information on the current state of the law regarding prayer and religious expression in public schools.

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The law requires that as a condition of funding, a local educational agency, which is essentially a local school board, certify once a year to the State Department of Education that it has no policy that prevents participation in constitutionally protected prayer.

The State Department of Education has to report to the Secretary once a year two things: First, the State Department of Education has to report a list of the local school boards that have failed to make the required certification. The second thing that the State Department of Education has to report to the Secretary of Education once a year is any complaint made to that State Department of Education about a local school board or a local school that has allegedly denied a person the right to engage in constitutionally protected prayer.

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The law requires that the Department of Education ask the Department of Justice Office of Legal Counsel to review the guidance to verify that it indeed reflects the current state of the law, the Department has done that, and the Department of Justice has made the required verification.

I'd like to briefly go through three changes from the updated guidance to the 2003 guidance. The first change is that the updated guidance clarifies that State Departments of Education must provide a clear process for people to report complaints about a local school board or a local school denying a person the right to engage in constitutionally protected prayer. Most people who have a complaint against the local school board or a local school go directly to that school and they never realize that they can actually file a complaint with the Department of Education, and that if they do so, the State Department of Education must report that complaint to the Secretary of Education.

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The second way this guidance differs is that it clarifies that if a State Department of Education is aware of a public legal charge -- for example, a lawsuit against a particular local public school or a local schoolboard alleging that that school has denied someone the right to engage in prayer, then that State Department of Education must report the lawsuit to the Department of Education.

Some Departments of Education have not reported lawsuits even when those lawsuits have received national attention. And this guidance clarifies that they are obligated to do so.

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Finally, the updated guidance adds two sections that were not in the prior guidance. One section describes the religious expression generally and the other section describes the Equal Access Act.

Local education agencies are not required to certify compliance with this part of the -- the added parts of the guidance. But the reason the Department of Education decided to include these parts is because, first, the legal principles regarding religious expression also relate to prayer because prayer is a form of religious expression, and also, religious expression intersects very naturally with prayer. For example, some faiths require that a person wear certain religious garb as they pray. For example, if a Muslim student would like to wear a certain religious garb as they pray, the wearing of that religious garb is considered religious expression, not necessarily prayer. But there is an intersection there.

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Additionally, the guidance describes the Equal Access Act requirements. The Equal Access Act applies only to public secondary schools or public high schools, and it requires that religious student groups receive the same access to facilities such as classrooms as secular student groups. So if a religious student group would like to hold a prayer meeting in the classroom, that religious student group may do so as long as a secular student group can reserve that same room for a secular activity.

I'd like to note that the portions about religious expression in the Equal Access Act come primarily from a presidential memorandum from 1995 on Religious Expression in Public Schools and also a 1998 Department of Education Memorandum on Religious Expression in Public Schools.

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MR. CANTRELL: Thank you all. Operator, we will now take some questions.

Q Hi. This is Andrew Feinberg with Breakfast Media and the Independent. Thanks for doing this call. I had a question about the removal of the alternative provider requirements and how is that going to fit in with, for instance, the substance abuse treatment programs that are often court ordered.

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If a person under -- what you're suggesting, it seems if a person is court-ordered to a particular rehab program that is faith-based, they're not going to be allowed to ask to be referred to, say, one that is not faith-based, but is medication-based treatment or not religious in nature, and they'll have no right to know that (inaudible) is even available. Is that what you're proposing?

SENIOR ADMINISTRATION OFFICIAL: You know, to answer your question, I want to (inaudible) that these nine-agency rules -- proposed rules -- deal with situations where applicable law does not require any notice or referral. So with respect to the instance in which the proposed rules would remove the alternative provider requirements, it's doing so with regard to programs where no statute (inaudible) with the Constitution and no other applicable law requires them.

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Q Could you give an example of that?

SENIOR ADMINISTRATION OFFICIAL: Well, I mean, I could give you -- just, as an example, from my department, the Department of Justice, there are a great many programs (inaudible) dive into those, but there are three main grant-making offices within the Department of Justice: The Office of Justice Programs (inaudible).

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MR. CANTRELL: [Senior administration official], I think you might be cutting out a little bit. Would you say that again?

SENIOR ADMINISTRATION OFFICIAL: Yes, there are -- and I apologize. There are three grant-making components at the Department of Justice. And just speaking for my own department, there is no requirement, statutory or otherwise, that imposes these notice and referral alternative provider requirements. They were implemented simply because they had been required under President Obama’s executive order, which President Trump’s Executive Order 13831 has removed.

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So, again, these rules are removing these requirements only with respect to programs where applicable law does not require it. They only require it under executive order.

Q How is it a burden on an organization to say you can get this somewhere else? I mean, how is that a burden?

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MR. CANTRELL: Operator -- we’d be happy to answer that question -- if I could just ask you to mute participant lines after one question is asked so that we can get the most questioners in here. But we’re going to answer that question right here by a senior administration official.

SENIOR ADMINISTRATION OFFICIAL: Hi, the administration decided to take out that notice and referral provision for a couple of reasons. One, it’s not required by religious liberty law, as a couple of other briefers had mentioned, and we believe it’s intentioned with several aspects of religious liberty laws.

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Two, it’s profoundly unfair, right? Anytime that one set of group who’s carrying a burden that others aren’t, we believe that’s unequal treatment.

Three, we also think that it's cast religious organizations as sort of "rights violators in waiting," right? It suggests to everyone who walks through the door of a religious social service entity that maybe they should be offended or uncomfortable or be seeking to find a service elsewhere.

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And, you know, it is an additional administrative burden to figure how to provide this notice and to keep your running list of potential secular alternatives to which the organization refers people.

So for all those reasons, in our judgment, this was a requirement that really needed to be taken down.

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SENIOR ADMINISTRATION OFFICIAL: Yeah, I just want to add one more thing to that. I mean, I think the Supreme Court has recognized that, in certain circumstances, the obligation to refer someone to an organization that may -- where they may provide services in a manner that would violate that organization’s religious penance and can in certain circumstances impose a burden, doesn’t pose a burden. That’s the Hobby Lobby case, which we -- which the regulations cite as in support of that idea.

Q Hi, this is Noah Bierman with the Los Angeles Times. You mentioned that grantees and sub-grantees could not be treated any differently by granting -- you know, federal grant makers. What if those grantees have religious beliefs or expressions that discriminate against those of other races or religions or sexual orientations? How will that be handled?

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SENIOR ADMINISTRATION OFFICIAL: [Senior administration official], you want to take a crack at that?

SENIOR ADMINISTRATION OFFICIAL: Sure. I’m happy to take a crack at that. So, existing regulations already provide that those who participate in federally supported programs may not discriminate on the basis of religion -- you know, holding a religious belief, failure to hold a religious belief. And these proposed rules would not remove any of those anti-discrimination protections whatsoever.

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And I would also observe that, under existing regulations, you know, those who are looking to use the services of a social services provider that’s (inaudible) federal programs, they can choose whether or not to use the services of a particular provider. And these rules would not require any beneficiary to use the services of any particular provider. So they will retain that freedom. They retain their anti-discrimination protections, and they retain the freedom of choice in terms of which providers they wish to use.

MR. CANTRELL: Great. Next question.

Q Hi, this Ron Kampeas from the Jewish Telegraphic Agency. So I want to -- I want to understand: A vulnerable Jewish person goes to a rehab center because they’re addicted -- they have an addiction problem. That rehab center doesn’t have to -- they might -- that rehab center might include within its program aspects of proselytization. They don’t have -- they no longer have to tell them, “Hey, there’s a Chabad house down the street that might be more appropriate to you,” or “there’s just a secular organization that might be more appropriate to you”?

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What are the -- you’re removing the protections for that Jewish person to protect them from being -- from being exposed to government-funded proselytization. How do you address that?

Secondly, you know, you’re -- these new orders seem to be burdening states with notification responsibilities while removing them from government-funded religious organizations. How do you reconcile that?

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SENIOR ADMINISTRATION OFFICIAL: Hi. So just to clarify, under the proposed rules, all organizations -- religious and secular -- will continue to be prohibited from discriminating against recipients on the basis of religion or on the basis of refusal to (inaudible) to attend or participate in a religious practice. Any organization that discriminates on these bases remain ineligible to participate in social service programs in accordance with federal financial assistance.

That’s a pretty key piece of the law that governs how federal aid can be spent. That direct aid to an entity can’t be used for proselytization, can’t be used to discriminate on the basis of religion. And the regs make clear that that requirement remains in place. That has not changed.

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MR. CANTRELL: Operator, we’re happy to take one last question, please.

Q Hi, this is Sandhya Raman with Congressional Quarterly. Thanks for dong this call. My question was related to the nine rules that you mentioned, specifically to HHS. I know HHS has done a number of rules related to expanding religious freedom, and I guess a lot of those have already been pretty (inaudible). What does this do that the number of those rules don’t already do? What does it -- what is the added benefit of this rule?

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SENIOR ADMINISTRATION OFFICIAL: Hey, good question. Thank you. So, you’re right, HHS has a really robust sort of religious freedom portfolio. A lot of what they’ve done has to do with the religious freedom rights of individuals, specifically the conscience rights of individuals, how to handle moral and religious objections to participating in certain kinds of activities.

HHS has done a little bit of regulating to protect religious entities, specifically typically as to their own -- again, their own conscience rights and how they exercise -- how religious entities and entities that have conscience rights exercise them.

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This is different. This is not about HHS and these agencies specifically protecting the free exercise rights of individuals; that’s what the prayer guidance does. It’s not what the regs do. The regs are about implementing the free exercise rights of religious organizations as recipients of federal funding.

Mr. CANTRELL: Thank you, everyone. This will conclude our call. Again, Director Grogan’s opening remarks are the only remarks on the record. Opening remarks by both subject-matter experts -- by all three subject-matter experts, excuse me, and all the question-and-answer portion was on background, attributable to a senior administration officials.

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As always, direct all further questions to the White House Press Office. Thank you, everyone, for joining this morning.

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** END 8:34 A.M. EST


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