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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations Amendments of 1972 prohibits discrimination on the basis of sex, but not religion, and only in certain programs. While RFRA prohibits the federal government from substantially burdening a persons exercise of religion unless it demonstrates that the application of the burden is the least restrictive means of furthering a compelling governmental interest and discrimination by the federal government on the basis of religion often will violate RFRA, Congress does not specifically prohibit discrimination on the basis of religion as such in many of its statutes. In the statutes establishing certain programs and grants, Congress has specified the protected categories with respect to which discrimination is prohibited.
Congress has not expressly included discrimination on the basis of sexual orientation, gender identity, or same-sex marriage status, in any statute applicable to departmental grants. In making these decisions, Congress balanced a number of competing considerations, including ensuring protections for beneficiaries and avoiding burdens that might discourage organizations from participating in Department-funded programs. And it balanced these considerations with respect to, and in the context of, specific grant programs.
Likewise, with respect to 75.300d, the Supreme Courts holdings in United States v. Windsor, 570 U.S. 744 2013, and Obergefell v. Hodges, 576 U.S. 644
2015, have limits. Generally, those cases require federal and state governments as state actors to treat same-sex and opposite-sex couples the same in licensing and recognizing marriage. Those cases do not require private individuals to abandon any views or beliefs that they have about same-sex marriage; nor could they, given that the Due Process Clause and Equal Protection doctrine do not regulate private conduct.
In promulgating the existing 75.300c and d, however, the Department went beyond the nondiscrimination requirements imposed by Congress and beyond the holdings of Windsor and Obergefell. It added additional prohibited bases of discrimination, thus disrupting the balance struck by Congress for nondiscrimination requirements in Department-funded grant programs. It also inserted a requirement that all grant recipients in accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v.
Hodges, . . . must treat as valid the marriages of same-sex couples, which thus extends the holdings in those cases
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to non-state action. Indeed, depending on how broadly that provision were interpreted, it could raise concerns under the unconstitutional conditions doctrine. Cf. Agency for Intl Devt v.
Alliance for Open Society Intl, Inc., 570
U.S. 205, 214 2013 The Government may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit. internal quotation marks omitted.
The Department notes that the authority for imposing these requirements is not clear. In promulgating part 75, it relied on the Housekeeping Statute, 5 U.S.C. 301, which authorizes the head of an Executive department . . . to prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, pages, and property. But the Department does not interpret that statute as authorizing substantive regulations imposing nondiscrimination requirements on the conduct of federal grant recipients, except as necessary or appropriate to implement an underlying substantive statutory requirement.17 Similarly, the Department is not convinced that the authority conferred in the financial management statutes cited in 45 CFR
75.103 is appropriately exercised to impose nondiscrimination requirements of this sort. The Single Audit Act Amendments, for example, authorize the Department to promulgate rules to 1 monitor non-Federal entity use of Federal awards, and 2 assess the quality of audits conducted under this chapter, 31 U.S.C. 7504, 7505. That grant of authority does not appear to contemplate imposition of substantive nondiscrimination provisions onto all Departmental grant programs through regulation, especially where the substantive requirements were not embodied in statutes applying the requirement to all such grant programs.
Application of the requirements in 75.300c and d is also contrary to RFRA in at least some circumstances.
As explained at length later in this preamble, RFRA provides that the Government shall not substantially burden a persons exercise of religion even if the burden results from a rule of general applicability, except where application of such substantial burden 17 The Department recognizes that there are current legal challenges as to the use of the Housekeeping Statute to issue regulations to implement substantive statutory requirements.

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to a person 1 is in furtherance of a compelling governmental interest; and 2 is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. 2000bb1. The Department has already concluded that imposition of some of the nondiscrimination requirements in 75.300c and d would violate the rights of certain religious organizations interested in providing foster-care services as part of Department-funded programs. There may be other circumstances where these requirements create similar problems under RFRA.
Even assuming that the Department had legal authority to impose the nondiscrimination requirements in circumstances that do not present a RFRA problem, however, the Department no longer believes it appropriate to do so. As explained throughout this preamble, those nondiscrimination requirements raised questions about whether the Department was exceeding its authority, disrupted the balance of nondiscrimination requirements adopted by Congress, and sowed uncertainty for grant applicants, recipients, and subrecipients that could deter participation in Departmentfunded programs and, over time, undermine the effectiveness of those programs. The Department is under no legal obligation to impose such requirements and has accordingly decided to remove them. In their place, the Department adopts a new 75.300c to state clearly that all grant recipients and subrecipients must comply with the nondiscrimination requirements made applicable to them by Congress and a new 75.300d to state that the Department will comply with all applicable Supreme Court precedents in its administration of grants. These provisions fall squarely within the Departments statutory authorities, respect the balance struck by Congress with respect to nondiscrimination requirements applicable to grant recipients, and will promote certainty for grant applicants and recipients by returning to the longstanding requirements with which they are familiar.
Comment: A number of commenters, both those that supported the proposed rule generally and those that opposed the proposed rule, suggested that proposed 75.300d was unnecessary, as a truism or otherwise.
Response: The Department recognizes that proposed 75.300d may seem a truism. But it states an important principle: The Department will follow all applicable Supreme Court decisions in administering its award programs.
And it is not unknown for federal
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