A leaked document reveals that the U.S. Department of Health and Human Services plans on reversing a Trump administration delegation that allows the Office of Civil Rights to investigate religious freedom complaints. One Biden administration official believes the Trump-era policy acts as “a sword to impose religious beliefs on others.”
The document, obtained by Fox News, is a memorandum from the director of HHS’s Office of Civil Rights to HHS Secretary Xavier Becerra.
In the memo, OCR Director Lisa Pino expresses support for reversing a practice implemented in late 2017 by the Trump administration that delegated to OCR broad authority to enforce violations of the Religious Freedom Restoration Act.
“Prior to the delegation in 2017, no division was singularly responsible for the Department’s compliance with RFRA or the First Amendment,” she wrote in the memo, which is scheduled to be released later this week. “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.”
Specifically, the delegation gave the OCR director the authority to “accept and investigate complaints filed by individuals or entities alleging a failure by any departmental component to comply with RFRA,” “conduct RFRA compliance reviews of departmental programs or activities,” “provide technical assistance to departmental components regarding RFRA compliance,” “evaluate the effectiveness of RFRA complaint processing by RFRA and provide reports to appropriate oversight organizations.”
Additionally, the OCR director could “initiate such other actions as may be necessary to facilitate and ensure compliance with RFRA.”
The Trump administration’s delegation followed a May 4, 2017, executive order directing the U.S. attorney general to issue guidance to federal agencies “interpreting religious liberty protections in Federal law.” Then-Attorney General Jeff Sessions issued the guidance on Oct. 6, 2017.
Sessions asserted that RFRA “broadly [defines] the exercise of religion to encompass all aspects of observance and practice, whether or not central to, or required by a particular religious faith.” Pino maintained that “Rescinding the delegation to OCR does not lessen the commitment of the Department to compliance, but ensures that it is not used by any one agency to enact a broad, proactive agenda.”
“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,” Pino’s draft memo reportedly states.
“The prior Administration took an expansive view of the use of RFRA that resulted in negative impacts for underserved communities,” Pino added. She expressed particular concern about “broad-based exemptions from nondiscrimination requirements to child welfare agencies,” which she characterized as hampering “the ability of children and youth to obtain safe and loving foster and adoptive homes.”
Pino accused the Trump administration’s interpretations of RFRA of sending a “signal to LGBTQ+ communities that the Department did not recognize their civil rights, including the right to marry.”
“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,” she wrote.
While Pino signaled opposition to a legal interpretation that would allow faith-based foster agencies to uphold policies preventing the placement of foster children with same-sex couples, the U.S. Supreme Court ruled in July against the city of Philadelphia after it excluded a Catholic foster care agency over its policies preventing children from being placed with same-sex couples.
Roger Severino, who headed the HHS civil rights office during the Trump administration, argued in a tweet that the leaked memo proves that HHS “plans to effectively end religious freedom enforcement at HHS.”
“The Biden Admin declared open season on people of faith some time ago, this would make it official,” he declared.
The forthcoming memo is not the first time the Biden administration has taken action deemed hostile to religious liberty by critics.
In August, the Department of Justice dropped a lawsuit filed by the Trump administration against a Vermont hospital that coerced a pro-life nurse to assist in an abortion, a practice that violated her conscience. When a federal judge struck down a mandate requiring doctors and hospitals to perform gender transition surgeries even if doing so violated their religious beliefs, the Biden administration appealed the ruling.
Ryan Foley is a reporter for The Christian Post. He can be reached at: firstname.lastname@example.org