In many ways, religious employers are not too different from their secular counterparts. Both share many of the same concerns in respect to running their workplaces more efficiently. Additionally, both are subject to many of the same rules and regulations, with one critical difference: the availability of First Amendment protections.
After the past few years of favorable policy changes and court decisions, religious employers now must navigate the new realities associates with a new Administration. Although these entities may be concerned as to how the new Administration will approach religious rights, it is important to remember that the Supreme Court’s recent decisions on religious rights remain an independent factor that these groups may rely upon in addressing such concerns. However, the Supreme Court of course makes up only one element of our trifurcated system.
On the executive side of the equation, the Biden Administration will have an easier time nominating and confirming individuals who share the same interest and agendas to lead key administrative and executive agencies. For example, the Department of Labor, Department of Health and Human Services, and Department of Education are all departments where President Biden can eventually appoint his preferred candidates. The selected individuals will be put in place to effectuate policies that will directly impact employers across the nation. Some of those changes are already taking place as the Biden Administration considers how it will handle the “midnight regulations” issued towards the end of the Trump Administration. Of those, there are two regulations that are significant to faith-based organizations:
First, in December 2020, the Department of Health and Human Services (along with eight other federal agencies) announced a final ruling to ensure that faith-based and secular organizations do not lose their religious protections and liberties just because they participate in federal programs and activities.
Second, also in December 2020, the Department of Labor’s Office of Federal Contract Compliance Programs codified the religious exemptions to the equal opportunity clause in federal government contracting.
Both of these rules brought clarity and support to religious minded organizations in protecting their religious missions, and any change to those regulations could prove damaging to their religious needs. Both rules have also experienced resistance from some states and employee groups. For instance, in January 2021, a group of states led by New York filed a lawsuit seeking to block the codifications of the religious exemptions to the equal opportunity clause related to federal government contracting. Additionally, on the same day a group in Oregon filed a similar lawsuit.
In addition to the attacks being filed in court, there are questions as to whether Biden’s Department of Justice will defend the Trump-era regulations in court. In fact, in mid-February, the Biden Administration was clear that, “The Department of Labor intends to propose recission of the December 2020 rule through notice-and-comment rulemaking. For the federal contracting rule, the Biden Administration will abide by the Administrative Procedure Act’s rulemaking requirements, which means any efforts to rescind the new rules will likely take several months. Faith based organizations have reasons to be concerned about what this process will bring.
Supreme Court Considerations
It is far from clear as to whether the change in Administration means that Biden will look to create a less accepting environment for religious organizations. If the new Administration backs away from the protections advanced by the prior administration, faith-based employers can still look to the Supreme Court for religious protections. For instance, during the current term, the Supreme Court is considering Fulton v. City of Philadelphia, a case where a religious adoption agency refused to certify same-sex couples as eligible parents for children in Philadelphia’s foster care system based on religious beliefs.
With all of the new changes happening, and the change in Administration, religious organizations will need to closely monitor changes and advancements at the executive and legislative levels.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://