Guidance Regarding Department of Justice Grants and Executive Order 13798

U.S. Department of Justice
Washington, D.C. 20530
Guidance Regarding Department of Justice Grants and Executive Order 13798
This guidance summarizes the Department’s policies on how it administers its Federal
grants in compliance with Executive Order 13798, the Attorney General’s Memorandum
“Federal Law Protections for Religious Liberty,” OMB Memorandum M-20-09, and 28 C.F.R.
Part 38 (“Part 38”).
I. BACKGROUND
On May 4, 2017, President Trump issued Executive Order 13798, Presidential
Executive Order Promoting Free Speech and Religious Liberty, 82 Fed. Reg. 21,675 (May 9,
2017). Executive Order 13798 states that “Federal law protects the freedom of Americans and
their organizations to exercise religion and participate fully in civic life without undue
interference by the Federal Government” and further provides that the executive branch will
honor and enforce those protections. It also directed the Attorney General to “issue guidance
interpreting religious liberty protections in Federal law.” 82 Fed. Reg. at 21,675. Pursuant to
this instruction, the Attorney General, on October 6, 2017, issued the Memorandum for All
Executive Departments and Agencies, “Federal Law Protections for Religious Liberty,” 82
Fed. Reg. 49,668 (Oct. 26, 2017) (the “Attorney General’s Memorandum on Religious
Liberty”).1
The Attorney General’s Memorandum on Religious Liberty summarizes twenty key
principles of religious liberty protections in Federal law. Among other things, the
Memorandum emphasizes that individuals and organizations do not give up religious liberty
protections by providing government-funded social services, and that “government may not
exclude religious organizations as such from secular aid programs . . . when the aid is not being
* The contents of this document do not have the force and effect of law and are not meant to bind the
public in any way. This document is intended only to provide clarity to the public regarding existing requirements
under the law or Department policies.
1 Available at https://www.justice.gov/opa/press-release/file/1001891/download.

2
used for explicitly religious activities such as worship or proselytization.”2 Rules or grant terms
that “disqualif[y] 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 First Amendment’s Free Exercise Clause unless the government proves that the
disqualification is the least restrictive means to achieve a compelling governmental interest.3
The Memorandum further observes that Federal agencies must honor Federal religious liberty
legal protections in all their activities, including contracting and the distribution of grants.4 In
an implementation memorandum accompanying the Attorney General’s Memorandum on
Religious Liberty, the Attorney General directed all Department components and United
States Attorney’s Offices to incorporate the Religious Liberty Memorandum in all aspects of
the Department’s work, including grant administration.5
On January 16, 2020, the Office of Management and Budget (OMB) issued its own
guidance to all executive departments and agencies regarding Federal grants and Executive
Order 13798 (the “OMB Memorandum”).6 The OMB Memorandum directs all grant-
administering agencies to “publish policies detailing how they will administer Federal grants
in compliance with E.O. 13798, the Attorney General’s memorandum, and this
Memorandum.” This guidance fulfills that directive.
On December 17, 2020, the Department, in partnership with eight other agencies,
published a joint final rule to implement Executive Order No. 13831, Establishment of a
White House Faith and Opportunity Initiative, 83 Fed. Reg. 20,715 (May 3, 2018). That final
rule made certain changes to Part 38, effective January 19, 2021. See Equal Participation of
Faith-Based Organizations in the Federal Agencies’ Programs and Activities, 85 Fed. Reg.
82,037, 82,137 (Dec, 17, 2020).
II. EQUAL PARTICIPATION IN DEPARTMENT PROGRAMS
As detailed below, and as codified in Part 38, faith-based organizations have a right to
equal participation in the Department’s programs.
2 82 Fed. Reg. at 49,668, 49,669, 49,670 (principles 4, 6, and 20).
3 Id. at 49,672 (appendix 3a).
4 Id. at 49,671 (Guidance for Implementing Religious Liberty Principles).
5 Memorandum for All Component Heads and United States Attorneys, “Implementation of
Memorandum on Federal Law Protections for Religious Liberty” (Oct. 26, 2017), available at
https://www.justice.gov/crt/page/file/1006791/download.
6 OMB M-20-09, Memorandum for the Heads of Executive Departments and Agencies, “Guidance
Regarding Federal Grants and Executive Order 13798” (Jan. 16, 2020) (the “OMB Memorandum”), available at
https://www.whitehouse.gov/wp-content/uploads/2020/01/M-20-09.pdf.

3
A. Faith-Based Organizations’ Right of Nondiscrimination
Faith-based organizations are eligible, on the same basis as any other organization, to
participate in any Department program for which they are otherwise eligible.7 No assurances
or notices can be required from faith-based organizations unless required from non-faith-
based organizations, and any restrictions on the use of grant funds must apply equally to faith-
based and non-faith-based organizations.8 No grant document, agreement, covenant,
memorandum of understanding, policy, or regulation that is used by the Department or a State
or local government in administering financial assistance from the Department shall disqualify
faith-based organizations from participating in the Department’s programs because such
organizations are motivated or influenced by religious faith to provide social services, or
because of their religious character or affiliation, or on grounds that discriminate against
organizations on the basis of the organizations’ religious exercise.9 And neither the
Department nor any State or local government receiving funds under any Department
program shall, in the selection of service providers, discriminate for or against an organization
on the basis of the organization’s religious character or affiliation, or lack thereof, or on the
basis of the organization’s religious exercise.10
For these purposes, to discriminate against an organization on the basis of the
organization’s religious exercise means to disfavor an organization, including by failing to
select an organization, disqualifying an organization, or imposing any condition or selection
criterion that otherwise disfavors or penalizes an organization in the selection process or has
such an effect: (1) because of conduct that would not be considered grounds to disfavor a
secular organization; (2) because of conduct that must or could be granted an appropriate
accommodation in a manner consistent with the Religious Freedom Restoration Act (42
U.S.C. 2000bb et seq.) or the Religion Clauses of the First Amendment to the Constitution;
or (3) because of the actual or suspected religious motivation of the organization’s religious
exercise.11
These regulations ensuring equal treatment for faith-based organizations derive from
or are designed to avoid tension with the requirements of the First Amendment and of
governing federal statutes, as articulated by the Supreme Court. Under the Free Exercise
Clause of the First Amendment, for example, Federal, State, and local governments generally
7 28 C.F.R. § 38.4(a).
8 Id. § 38.5(d).
9 Id.
10 Id. § 38.4(a).
11 Id.

4
may not condition a public benefit—including an award or sub-award of Federal grant
money—in a manner that disadvantages applicants on the basis of their religious status.12
The Supreme Court has made clear that “disqualifying otherwise eligible recipients
from a public benefit ‘solely because of their religious character’ imposes ‘a penalty on the free
exercise of religion that triggers the most exacting scrutiny.’”13 And the Court also has made
clear that State law cannot overcome this principle. In Espinoza v. Montana Department of Revenue,
the Court held that “the Free Exercise Clause precluded the Montana Supreme Court from
applying Montana’s no-aid provision to bar religious schools from [a neutral and generally
available] scholarship program.”14
Part 38’s prohibitions on government discrimination against organizations on the basis
of their religious character, affiliation, motivation, or exercise thus apply even where such
discrimination results from an application of State law.15 Part 38 contains no exception for
discrimination that results from an application of State law.
B. Faith-Based Organizations’ Right of Independence from Government
A faith-based organization that applies for, or participates in, Department-funded
programs or services may retain its autonomy; right of expression; religious character; and
independence from Federal, State, and local governments and may continue to carry out its
mission, including the definition, development, practice, and expression of its religious
beliefs.16 For example, among other things, a faith-based organization that receives financial
assistance from the Department may use space in its facilities without removing or concealing
12 See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (“The Free Exercise
Clause ‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that
target the religious for ‘special disabilities’ based on their ‘religious status.’”) (quoting Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U. S. 520, 533, 542 (1993)); see also Attorney General’s Memorandum on Religious
Liberty, 82 Fed. Reg. 49,668, 49,668, 49,670 (Oct. 26, 2017) (principles 4, 6, and 20).
13 See Espinoza v. Mont. Dep’t of Revenue, No. 18-1195, 2020 WL 3518364, --- U.S. --- (U.S. June 30, 2020),
slip op. at 8 (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017)).
14 See id. at 7.
15 See id. at 11 (examining a state court decision that “applied [state law] to hold that religious schools
could not benefit from” a state scholarship program, and holding that this application of state law amounted
to unconstitutional religious identity-based discrimination); cf. Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012, 2023 (2017) (holding unconstitutional a state policy of categorically disqualifying religious
organizations from receiving certain grants, and rejecting the State’s reliance on a state “constitutional tradition
of not furnishing taxpayer money directly to churches”).
16 28 C.F.R. §§ 38.2(a), 38.5(b).

5
religious art, icons, messages, scriptures, or symbols.17 In addition, a faith-based organization
that receives financial assistance from the Department retains authority over its internal
governance. For example, among other things, it may retain religious terms in its
organizational name, select its board members on a religious basis (including acceptance of or
adherence to its religious tenets), and include religious references in its mission statements and
other governing documents.18
Like all organizations that receive the Department’s financial assistance, faith-based
organizations may not use direct Federal financial assistance to engage in any explicitly
religious activities, including activities that involve overt religious content such as worship,
religious instruction, or proselytization.19 But this does not require faith-based organizations
to forgo their explicitly religious activities, including those that may be similar to the funded
program.20 Rather, if an organization conducts explicitly religious activities, those activities
simply must be offered separately, in time or location, from the programs or services funded
with direct financial assistance from the Department, and participation must be voluntary for
beneficiaries of the programs or services funded with such assistance.21 The organization is
not prohibited from inviting program beneficiaries to participate in a separate, explicitly
religious activity, so long as the invitation occurs separate in time or location from the
Department-supported program (for example, before the program has begun or after the
program has ended) and appropriate steps are taken to ensure the distinction between the
activity and the Department-supported program and to ensure the voluntariness of any
participation in the activity.22 In addition, no grant document, agreement, covenant,
memorandum of understanding, policy, or regulation that the Department or a State or local
government uses in administering financial assistance from the Department shall single out
17 Id. § 38.5(b).
18 Id. § 38.5(b).
19 28 C.F.R. §§ 38.2(a), 38.5(a). See also Religious Restrictions on Capital Financing for Historically Black Colleges
and Universities, -- Op. O.L.C. --- (2019), slip op. at 20–21 (“HBCUs Opinion”), available at
https://www.justice.gov/olc/file/1200986/download (“Although the Establishment Clause does not forbid
all such aid . . . the federal government has in many instances excluded explicitly religious activities, including
religious instruction, from more general funding programs, and thus has long asserted an interest in avoiding
the funding of religious instruction akin to that recognized by the Court in Locke [v. Davey, 540 U.S. 712 (2004)].”
Id. §§ 38.2(a), 38.5(a).
20 Frequently Asked Questions: Partnerships with Faith-Based and Other Neighborhood
Organizations: 28 C.F.R. part 38, available at
https://www.ojp.gov/sites/g/files/xyckuh241/files/media/document/faqs_part38.pdf (FAQ 16).
21 28 C.F.R. § 38.5(a).
22 Frequently Asked Questions: Partnerships with Faith-Based and Other Neighborhood
Organizations: 28 C.F.R. part 38, available at
https://www.ojp.gov/sites/g/files/xyckuh241/files/media/document/faqs_part38.pdf (FAQ 21).

6
faith-based organizations by requiring only them to provide assurances or notices that are not
required of secular organizations, including assurances that they will not use monies or
property for explicitly religious activities.23
Notwithstanding the foregoing restriction on the use of direct Federal financial
assistance, nothing in Part 38 restricts the Department’s authority under applicable Federal
law to directly fund activities, such as the provision of chaplaincy services, that can be directly
funded by the Government consistent with the Establishment Clause and other applicable
federal law.24 For example, the restriction against the use of direct financial assistance to
support explicitly religious activities might not apply to some programs where funds are
provided to chaplains to work with people in detention facilities, or where funds are provided
to religious or other organizations for programs in detention facilities that assist chaplains in
carrying out their duties.25
In any event, receipt of direct Federal financial assistance does not preclude all mention
of religion in a Department-supported program. First, program beneficiaries may freely
express their own religious beliefs, and attending a Department-supported program does not
affect an individual’s right to the free exercise of religion, including the right to pray on one’s
own.26 Second, guest speakers also may express their religious beliefs, provided that the
program itself remains neutral toward religion.27 And third, while faith-based organizations
may not use direct Federal financial assistance to engage in any explicitly religious activities,
they may refer to religion in a variety of ways when doing so is consistent with the purposes
23 28 C.F.R. § 38.5(d).
24 Id. § 38.2(c); see Theriault v. Silber, 547 F.2d 1279, 1280 (5th Cir. 1977) (per curiam) (rejecting claim
“that employment of chaplains in federal prisons by the United States violates the Establishment Clause”); see
also Cutter v. Wilkinson, 544 U.S. 709, 724–25 (2005) (rejecting an argument that would call into question a state’s
“provid[ing] inmates with chaplains but not with publicists or political consultants” (internal quotation marks
omitted)); Marsh v. Chambers, 463 U.S. 783 (1983) (rejecting Establishment Clause challenge to state legislature’s
practice of opening each session with a prayer offered by a chaplain paid with public funds); Sch. Dist. of Abington
Twp. v. Schempp, 374 U.S. 203, 297 (1963) (Brennan, J., concurring) (observing that “provision by state and
federal governments for chaplains in penal institutions” may be “sustained on constitutional grounds as
necessary to secure to . . . prisoners those rights of worship guaranteed under the Free Exercise Clause”); Carter
v. Broadlawns Med. Ctr., 857 F.2d 448 (8th Cir. 1988) (rejecting Establishment Clause challenge to county
hospital’s chaplaincy); Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) (rejecting Establishment Clause challenge to
military chaplaincy); HBCUs Opinion, 43 Op. O.L.C., at *21 (“As we have observed, . . . the federal government
since the time of the Founding has employed chaplains . . . .”).
25 Frequently Asked Questions: Partnerships with Faith-Based and Other Neighborhood
Organizations: 28 C.F.R. part 38, available at
https://www.ojp.gov/sites/g/files/xyckuh241/files/media/document/faqs_part38.pdf (FAQs 17).
26 (FAQs Nos. 11 and 14).
27 (FAQs No. 13).

7
of the program. For example, in a healthy-marriage program or in a responsible-fatherhood
program, staff may note that some spouses share religious convictions and practice their faith
as a family or that couples who do not share the same faith may need to discuss constructive
ways in which to handle their religious differences. Instructors in a juvenile justice program
may note that for some youths, values may spring from religious beliefs and traditions. In
conflict mitigation programs, staff may note that principles of nonviolence are anchored in
the teachings of many religious traditions. Just as public schools may teach about religion, such
as the history of religion, comparative religion, literary analysis of the Bible and other scripture,
and the role of religion in the history of the United States and other countries, staff in
Department-supported programs receiving direct Federal financial assistance may discuss
religion in such ways. In other words, staff may not use direct Federal financial assistance to
inculcate or discourage a religious practice or belief, but it is permissible for staff to
acknowledge the role of religion in the lives of some individuals and in certain communities.28
Finally, any prohibition against using direct Federal financial assistance to engage in
explicitly religious activities—and any corresponding requirement to separate, in time or
location, such activities from the supported programs or services—does not apply to the use
of indirect Federal financial assistance, such as certain vouchers, certificates, or other similar
means of government-funded payment where the choice of service provider is placed in the
hands of the beneficiary.29 Accordingly, an organization that participates in a program funded
by indirect Federal financial assistance need not modify its program activities to accommodate
a beneficiary who chooses to expend the indirect aid on the organization’s program and may
require attendance at all activities that are fundamental to the program.30
C. Application to Commingled State and Local Funds
If a State or local government voluntarily contributes its own funds to supplement
activities carried out under the applicable programs, the State or local government has the
option to separate out the Federal funds or commingle them. If the funds are commingled,
the same rules that apply to Federal funds shall apply to all of the commingled funds.31
III. RELIGIOUS ACCOMMODATIONS AND HIRING OF CO-RELIGIONISTS
Multiple federal laws provide that the Department is required or permitted to grant
religious accommodations and conscience protections in the applicable programs, including
28 (FAQs No. 10).
29 See 28 C.F.R. §§ 38.2(b), .3(b), .6(b); see also id. § 38.5(a) (“Organizations that receive direct financial
assistance from the Department may not engage in explicitly religious activities . . . .”) (emphasis added).
30 Id. § 38.5(c).
31 Id. § 38.6(a).

8
under the Free Exercise Clause of the Constitution; the Religious Freedom Restoration Act
of 1993, 42 U.S.C. §§ 2000bb et seq. (“RFRA”); Coats-Snowe, 42 U.S.C. § 238n; Patient
Protection and Affordable Care Act, 42 U.S.C. § 18113; Title VII, 42 U.S.C. §§ 2000e-1(a),
2000e-2(e); Americans with Disabilities Act, 42 U.S.C. § 12113(d); and Weldon Amendment.
Eligibility determinations for faith-based organizations must take into account any appropriate
religious accommodations under these provisions.32 Also, the requirement that faith-based
organizations must carry out all eligible activities consistent with all program requirements is
expressly “subject to any religious accommodations appropriate under” these provisions of
Federal law. 33 It is prohibited discrimination on the basis of religious exercise—for the
Department or its intermediaries to disfavor a faith-based organization in selection decisions
because of conduct that must or could be granted an appropriate accommodation in a manner
consistent with RFRA or the Religious Clauses of the First Amendment.34 As a result, faith-
based organizations are invited to request accommodations and conscience protections, as
appropriate. Any questions about such requests should be directed to the Department’s Office
of Justice Programs’ Office of General Counsel at 202-514-2000.
RFRA is the most likely ground on which to provide accommodations in the
Department’s programs. Under RFRA, the Federal government “shall not substantially
burden [an organization’s] exercise of religion even if the burden results from a rule of general
applicability” unless the government “demonstrates that application of the burden to the
[organization] is in furtherance of a compelling governmental interest” and “is the least
restrictive means of furthering that compelling governmental interest.”35 RFRA “applies to all
Federal law, and the implementation of that law, whether statutory or otherwise, and whether
adopted before or after” RFRA’s effective date.36 Indeed, Federal statutory law enacted after
RFRA’s effective date “is subject to this chapter unless such law explicitly excludes such
application by reference to” RFRA.37 Therefore, RFRA applies to all statutes and regulations
governing Department programs, and to the Department’s implementation of those statutes
and regulations, unless those statutes and regulations explicitly exclude its application by
reference to RFRA.
Additionally, a faith-based organization’s right to employ individuals of a particular
religion set forth in section 702(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-1(a), is not
32 28 C.F.R. § 38.4(a).
33 28 C.F.R. § 38.5(d).
34 28 C.F.R. § 38.4(a).
35 42 U.S.C. § 2000bb-1.
36 Id. § 2000bb-3(a).
37 Id. § 2000bb-3(b).

9
forfeited when the organization receives direct or indirect Federal financial assistance from
the Department.38 This right protects decisions to employ only persons whose beliefs and
conduct are consistent with the employer’s religious precepts.39 Some Department programs,
however, are predicated on independent statutory provisions requiring that all grantees40 agree
not to make religion-based employment decisions. But under certain circumstances, RFRA
guarantees to faith-based grantees an exemption from these requirements.
On a case-by-case basis, RFRA allows faith-based organizations to receive a grant or
cooperative agreement while maintaining a hiring preference for co-religionists, even when
the authorizing statute for the grant program expressly forbids such employment practices.41
Where a law governing a Department program prohibits religion-based employment practices,
to obtain an exemption, a faith-based organization must complete a certification regarding its
religion-based hiring practices.42 Among other things, it must certify to the applicable
Department component administering the program (or, in the case of a sub-award, to the
award recipient) that it sincerely believes that providing the programs or services funded under
the award by the Department is an expression of its religious beliefs, that employing
individuals of a particular religious belief is important to its religious mission or identity, and
that having to abandon its religious hiring practice to receive Department funding would
substantially burden its religious exercise.43 If the employment nondiscrimination requirement
imposes a substantial burden on the exercise of religion, RFRA requires the Department to
recognize an exemption unless the Department finds good reason to question the statements
in the certification or the Department demonstrates that denying an exemption for that
particular organization is the least restrictive means of furthering a compelling governmental
interest.44
38 Id. § 38.5(e).
39 Attorney General’s Memorandum on Religious Liberty, 82 Fed. Reg. 49,668, 49,670, 49,677 (Oct.
26, 2017) (principle 19 and appendix).
40 As used in this guidance, the terms “grantee” and “grantees” include sub-grantees.
41 See Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to a Juvenile Justice
and Delinquency Prevention Act, 31 Op. O.L.C. 162 (2007) (“World Vision Opinion”), available at
https://www.justice.gov/sites/default/files/olc/opinions/2007/06/31/worldvision_0.pdf.
42 See “Certification Regarding Hiring Practices on the Basis of Religion,” available at
https://www.ojp.gov/sites/g/files/xyckuh241/files/media/document/certificationregardinghiring.pdf.
43 Id.
44 See Attorney General’s Memorandum on Religious Liberty, 82 Fed. Reg. 49,668, 49,669–70 (Oct. 26,
2017) (principles 10, 11, 13, 14, and 15); see also, e.g., “Civil Rights Requirements Associated with OJP Awards,”
available at https://www.ojp.gov/funding/explore/legaloverview2020/civilrightsrequirements#5.

10
A hiring preference for co-religionists need not be compelled by, or central to, an
organization’s system of religious belief for RFRA to require the Department to recognize an
exemption.45 In addition, RFRA does not permit the Department to assess the reasonableness
of a religious belief or the reasonableness of an organization’s application of its religious belief,
including an organization’s assessment that a hiring preference for co-religionists is important
to the exercise of its faith.46 However, RFRA does not require the Department to recognize
an exemption where the organization itself regards its hiring preference as unimportant or
inconsequential.47
Grantees should consult with the appropriate Department program office to determine
the scope of any applicable prohibition on religion-based employment practices.
IV. ENFORCEMENT OF RELIGIOUS LIBERTY PROTECTIONS
As the OMB Memorandum observes:
2 C.F.R. § 200.300 requires grant awarding agencies “to ensure that Federal
funding is expended . . . in full accordance with U.S. statutory and public policy
requirements: including . . . those . . . prohibiting discrimination. The Federal
awarding agency must communicate to the non-Federal entity all relevant public
policy requirements . . . and incorporate them either directly or by reference in
the terms and conditions of the Federal award.” The Financial Assistance
General Certifications and Representations completed by all recipients of
Federal awards that register and apply for grants through the System for Award
Management requires awardees to certify that they will comply with all relevant
provisions of Federal laws, executive orders, regulations, and public policies
governing financial assistance awards.48
In addition, under Department regulations, “[e]very application submitted to the
Department for direct Federal financial assistance subject to [Part 38] must contain, as a
condition of its approval and the extension of any such assistance, or be accompanied by, an
assurance or statement that the program is or will be conducted in compliance with [Part 38],”
and “[e]very intermediary must provide for such methods of administration as are required by
the Office for Civil Rights to give reasonable assurance that the intermediary will comply with
45 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7).
46 Attorney General’s Memorandum on Religious Liberty, 82 Fed. Reg. 49,668, 49,669 (Oct. 26, 2017)
(principle 12).
47 Id. at 49,669–70 (principle 13).
48 OMB Memorandum at 1.

11
[Part 38] and effectively monitor the actions of its recipients.”49 Accordingly, the terms of the
Federal grants that the Department awards make clear that grantees must comply with Part
38. This includes, but is not limited to, the obligation of States and other public grantees to
comply with the prohibitions on discriminating against sub-grantees on the basis of their
religious character, affiliation, motivation, or exercise.50
As the OMB Memorandum further observes:
Agencies have meaningful tools to address public recipients’ unlawful
discrimination on the basis of religious character in the issuance of sub-awards
of Federal grant funds —up to and including terminating the grant and initiating
proceedings to debar the recipient from being eligible in the future to receive
Federal grants, contracts, or subsidies. Agencies administering a Federal grant
program shall take all appropriate action, in a manner consistent with applicable
law, to ensure that public grantees do not discriminate against applicants for
sub-grants on the basis of their religious character. Such action may include, but
is not limited to, utilizing the risk mitigation provisions set forth in 2 C.F.R.
§ 200.207 and the enforcement provisions set forth in 2 C.F.R. § 200.338, as
appropriate.51
In addition to these authorities, the Department’s regulations provide particularized
mechanisms for enforcement of all of the obligations that grantees assume under Part 38. The
Department’s regulations provide that the Office of Justice Programs’ Office for Civil Rights
(the “OCR”) “is responsible for reviewing the practices of recipients of Federal financial
assistance to determine whether they are in compliance with” their obligations under Part 38.52
The OCR is charged with investigating any allegations of noncompliance with those
obligations.53 If recipients are “determined to be in violation” of any of those obligations, they
“are subject to the enforcement procedures and sanctions, up to and including suspension and
termination of funds, authorized by applicable laws.”54
It is the Department’s policy that it will investigate allegations of noncompliance with
Part 38 and take appropriate action upon a finding of a violation. This policy of investigation
49 28 C.F.R. § 38.7.
50 See id. §§ 38.4(a), .5(d); see also, e.g., “General Conditions for OJP Awards in FY 2020,”
https://www.ojp.gov/funding/explore/legaloverview2020/mandatorytermsconditions#23.
51 OMB Memorandum at 2.
52 28 C.F.R. § 38.8(a).
53 Id. § 38.8(b).
54 Id. § 38.8(c).

12
and enforcement includes, but is not limited to, allegations and findings that States or other
public grantees are conditioning sub-awards of Federal grant money in a manner that
disadvantages applicants on the basis of their religious status, even if they act or purport to act
pursuant to State law when doing so.55
V. THE DECEMBER 17, 2020 UPDATE TO DEPARTMENT REGULATIONS
The final rule issued on December 17, 2020 made a number of specific changes in
accordance with the preceding discussion. Among other things, it:
 Removes the notice-and-referral requirements that were previously required
of faith-based organizations but were not required of other organizations;
 States expressly that the Department and its intermediaries cannot
discriminate against faith-based organizations based on their religious
exercise, meaning disfavoring such an organization (1) because of conduct
that would not be considered grounds to disfavor a secular organization;
(2) because of conduct that must or could be granted an appropriate
accommodation in a manner consistent with the Religious Freedom
Restoration Act (42 U.S.C. 2000bb et seq.) or the Religion Clauses of the First
Amendment to the Constitution; or (3) because of the actual or suspected
religious motivation of the organization’s religious exercise.56
 Requires the Department’s notices or announcements of award opportunities
and notices of awards or contracts to include language clarifying the rights
and obligations of faith-based organizations that apply for and receive Federal
funding;57
 States expressly that faith-based organizations are eligible for certain
accommodations under existing federal law;58
55 See Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2256 (2020)(examining a state court decision
that “applied [state law] to hold that religious schools could not benefit from” a state scholarship program, and
holding that this application of state law amounted to unconstitutional religious identity-based discrimination);
cf. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2023 (2017) (holding unconstitutional a state
policy of categorically disqualifying religious organizations from receiving certain grants, and rejecting the
State’s reliance on a state “constitutional tradition of not furnishing taxpayer money directly to churches”).
56 28 C.F.R. § 38.4(a).
57 28 CFR Part 38, Appendices A, B; see also 85 Fed. Reg. at 82140.
58 28 CFR §§ 38.3(g), 38.4(a), 38.5(d); see also 85 Fed. Reg. at 82138-39.

13
 Updates the definition of “indirect Federal financial assistance” to align
more closely with the Supreme Court’s decision in Zelman v. Simmons-Harris,
536 U.S. 639 (2002), by removing the requirement that beneficiaries have at
least one secular option;59
 Clarifies that a faith-based organization participating in an indirect Federal
financial assistance program or activity need not modify its policies that
require attendance in “all activities that are fundamental to the program”
(the prior provision already said such an organization need not modify its
program to accommodate a beneficiary);60
 Clarifies that faith-based organizations participating in Department-funded
programs shall retain their autonomy, right of expression, religious character,
and independence;61
 Clarifies that none of the guidance documents that the Department or its
intermediaries use in administering the Department’s financial assistance shall
require faith-based organizations to provide assurances or notices where
similar requirements are not imposed on secular organizations, and that any
restrictions on the use of grant funds shall apply equally to faith-based and
secular organizations;62
 Clarifies that faith-based organizations need not remove, conceal, or alter any
religious symbols or displays;63
 Clarifies that the existing provision permitting discrimination on the basis of
religion with respect to board membership includes such discrimination based
on acceptance of or adherence to the organization’s religious tenets;64
 Clarifies that an organization with a sincerely held religious objection to
obtaining 501(c)(3) tax exemption can demonstrate nonprofit status with
59 Id. § 38.3(b); see also 85 Fed. Reg. at 82138.
60 Id. § 38.5(c); see also 85 Fed. Reg. at 82138-39.
61 Id. § 38.5(b); see also 85 Fed. Reg. at 82138.
62 Id. § 38.5(d); see also 85 Fed. Reg. at 82139.
63 Id. § 38.5(b); see also 85 Fed. Reg. at 82138.
64 Id. § 38.5(b); see also 85 Fed. Reg. at 82138.

14
evidence sufficient to show that it would qualify as a nonprofit in one of four
ways;65
 Updates terminology to refer to “faith-based organizations,” not “religious
organizations;” and
 Clarifies that the Agencies and their intermediaries cannot advantage or
disadvantage faith-based organizations affiliated with historic or well-
established religions or sects in comparison with other religions or sects.66
65 Id. § 38.5(g); see also 85 Fed. Reg. at 82139.
66 Id. § 38.5(i); see also 85 Fed. Reg. at 82139.