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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations adoption and foster care providers or faith-based agencies, which should not need to choose between helping children and their deeply held beliefs and should be free to serve children and families according to their beliefs.
Several noted that prohibiting religious groups from providing critical services to underserved and at-risk children violates the principles of religious freedom; others noted that Christianbased foster agencies should not be discriminated against because of their religious beliefs regarding marriage.
Some commenters also supported the proposed rule because they support the inclusion of faith-based organizations for consideration in the awarding of grants.
Response: RFRA provides broad protection for religious liberty against infringement by the federal government.
Burwell v. Hobby Lobby, 573 U.S. 682
2014. RFRA provides that the federal government shall not substantially burden a persons exercise of religion even if the burden results from a rule of general applicability, unless it demonstrates that the application of the burden to the 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. RFRAs test is the most rigorous form of scrutiny identified by the Supreme Court.
Church of the Lukumi Babalu Aye v.
City of Hialeah, 508 U.S. 520, 546
1993; see also City of Boerne v. Flores, 521 U.S. 507, 534 1997 Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.. It governs all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993: It is applicable to federal statutory law adopted after such date unless such law explicitly excludes such application by reference to this chapter. 21
For purposes of RFRA, exercise of religion includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief. 42 U.S.C. 2000bb22, 2000cc 57A. The term substantially burden means to ban an aspect of a persons religious observance or practice, compel an act inconsistent with that observance or practice, or substantially pressure the person to modify such observance or practice.
21 42

U.S.C. 2000bb3.

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Department of Justice, Federal Law Protections for Religious Liberty, 82 FR
49668, 4966970 Oct. 26, 2017.
Whether the financial consequences are a fine or the withholding of a benefit, such as a grant or license, is irrelevant.
See Sherbert v. Verner, 374 U.S. 398, 404 1963 It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.; see also Hobbie v. Unemployment Appeals Commn of Fla., 480 U.S. 136, 141 1987; Thomas v. Review Bd. of Ind., 450 U.S. 708, 717
18 1981.22 In 2017, the Supreme Court recognized that, under the First Amendment, religious institutions applying for government grants have a right to participate in a government benefit program without having to disavow their religious character.
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022
2017. And RFRA likewise applies to government actions in administering grant programs. See 82 FR at 49669
RFRA applies to all actions by federal administrative agencies, including . . .
grant or contract distribution and administration.; see also OLC
Opinion, Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to the Juvenile Justice and Delinquency Prevention Act, 31 Op. O.L.C. 1, 62 2007 RFRA
requires Office of Justice Programs to exempt a religious organization that is a grantee from a religious nondiscrimination requirement in the grant.
Government bears a heavy burden to justify a substantial burden on the exercise of religion. Only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion. Thomas, 450 U.S.
at 718 quoting Wisconsin v. Yoder, 406
U.S. 206, 215 1972. Broadly formulated interests justifying the general applicability of government mandates are insufficient. Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 2006. The government must establish a compelling interest to deny an accommodation to the particular claimant. Id. at 430, 435
38. An asserted compelling interest in denying an accommodation to a particular claimant is undermined by evidence that exemptions or accommodations have been granted for other interests, id. at 433, 43637;
Hobby Lobby, 134 S. Ct. at 2780, that the 22 RFRA expressly incorporates the compelling interest tests of Wisconsin v. Yoder, 406 U.S. 205
1972 and Sherbert v. Verner, 374 U.S. 398 1963.
See 42 U.S.C. 2000bbb1.

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government has in place a system of individual exemptions from the requirement, Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 884
1994; Fraternal Order of Police v. City of Newark, 170 F.3d 359, 366 3d Cir.
1999 Alito, J., or that similar agencies or programs do not impose the requirement, Holt v. Hobbs, 135 S. Ct.
853, 866 2015. The compelling-interest requirement applies even where the accommodation sought is an exemption from a legal obligation requiring the claimant to confer benefits on third parties. Hobby Lobby, 134 S. Ct. at 2781 n.37. Although in applying RFRA courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, the Supreme Court has explained that almost any governmental regulation could be reframed as a legal obligation requiring a claimant to confer benefits on third parties. Id. quoting Cutter v. Wilkinson, 544 U.S. 709, 720 2005. As nothing in the text of RFRA admits of an exception for laws requiring a claimant to confer benefits on third parties, 42 U.S.C.
2000bb1, and such an exception would have the potential to swallow the rule, the Supreme Court has rejected the proposition that RFRA accommodations are categorically unavailable for laws requiring claimants to confer benefits on third parties. Hobby Lobby, 134 S. Ct. at 2781 n.37.
Even if the government can identify a compelling interest, the government must also show that denial of an accommodation is the least restrictive means of serving that compelling governmental interest. This standard is exceptionally demanding. Id. at 2780.
It requires the government to show that it cannot accommodate the religious adherent while achieving its interest through a viable alternative, which may include, in certain circumstances, expenditure of additional funds, modification of existing exemptions, or creation of a new program. Id. at 2781.
Indeed, the existence of exemptions for other individuals or entities that could be expanded to accommodate the claimant, while still serving the governments stated interests, will generally defeat a RFRA defense, as the government bears the burden to establish that no accommodation is viable. See id. at 278182.
Applying these principles, as noted in the proposed rule, and above, the Department determined that RFRAs application to 75.300c in the context of the South Carolina Title IVE foster care program, and the participation of a faith-based provider whose religious
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