First Amendment, Second Term

Will President Barack Obama Stand Up For Church-State Separation? Here Are Five Critical Issues To Watch.

The day after the Nov. 6 election, Cardinal Timothy Dolan of New York City wrote a letter to President Barack Obama, congratulating him on his victory.

“In my capacity as President of the United States Conference of Catholic Bishops, I write to express my congratulations on your re-election as President of the United States,” wrote Dolan. “The people of our country have again entrusted you with a great responsibility. The Catholic Bishops of the United States offer our prayers that God will give you strength and wisdom to meet the difficult challenges that face America.”

Lurking behind Dolan’s conciliatory tone was no small amount of chutzpah. Leading members of the Catholic hierarchy had clearly favored Obama’s opponent, former Massachusetts Gov. Mitt Romney, and tried to help him in various ways. Some bishops went so far as to tell congregants that voting for the wrong candidates (Obama and other Democrats) could put their souls in jeopardy.

Dolan didn’t let that history slow him down. In his note, the prelate took pains to remind Obama that the church leadership will continue to pursue its political agenda.

“In particular, we pray that you will exercise your office to pursue the common good,” he wrote, “especially in care of the most vulnerable among us, including the unborn, the poor, and the immigrant. We will continue to stand in defense of life, marriage, and our first, most cherished liberty, religious freedom.”

The reference to “religious freedom” – and even the use of italics setting it off – was a not-so-subtle message to Obama. For more than a year, the Catholic bishops have been sparring with the Obama administration over a regulation the administration issued dealing with birth control. The administration wants Americans to have broad access to contraceptives, and under the new health care law, has ordered insurance companies to provide it at no cost.

Houses of worship are exempt from the mandate, but the bishops, backed by their Religious Right allies, say that exemption doesn’t go far enough and are resisting the rule. Seeking favorable media spin, they have framed the issue as a threat to their “religious freedom.”

Dolan’s note was a reminder to Obama that the church doesn’t plan to back down. It also put the country on notice to expect significant church-state challenges during the next four years.

For Americans United, it means that clerical efforts to control public policy won’t be slowing any time soon.

Here is a round-up of the church-state issues Americans United expects to see in Washington, D.C., during the president’s second term.

 

Health care and various ‘conscience’ exemptions

The bishops are working on several fronts to derail the Obama administration’s plans to ensure access to birth control for all Americans who want it.

The use of artificial contraception is ubiquitous in the United States. Studies show that the overwhelming majority of women will use it at some point in their lives. In addition, birth control pills are sometimes prescribed for other reasons, such as to shrink ovarian cysts.

In 2011, the Obama administration announced that all employers except houses of worship would have to include no-cost birth control in a baseline healthcare package. When the bishops and some other religious groups complained, the administration arranged for insurance companies to shoulder the cost.

That wasn’t enough for the Cath­olic hierarchy. The bishops, backed by several Religious Right groups, are arguing that any employer with a religious objection to birth control – including owners of secular businesses – should have the right to deny their employees birth control through health insurance plans.

The bishops are expected to lobby the administration hard on this issue this year and press for a “compromise” – essentially a wide-ranging exemption that would permit any employer to cut off birth control coverage if he or she finds it objectionable.

Women’s rights groups, health care advocates and supporters of church-state separation argue that the bishops’ demand goes much too far. Use of birth control, they assert, is a fact of modern life, and Americans should not find their access to it blocked because of a boss’s religious beliefs. 

In mid-November, Richard Doerflinger, the associate director of the U.S. Conference of Catholic Bishops’ Secretariat of Pro-Life Activities, told the National Catholic Register that the bishops hope to pressure Congress to add a “conscience clause” provision as a rider to a must-pass bill. He cited as an example pending legislation that appropriates money for the Departments of Labor and Health and Human Services.

Doerflinger noted that the House of Representatives is already favorable to riders like this and pointed out that one has already been added to the Labor/HHS appropriations bill. He said the bishops plan to mobilize church members to write to their members of Congress about the issue.

Although Obama does not support the church’s view on this matter, he might be forced to accept a rider like this rather than veto an entire appropriations bill, Doerflinger said.

“We see every reason to continue our efforts in both Congress and the courts and to continue to ask the administration to take a more flexible view of the conscience issues involved,” Doerflinger told the Register.

Aside from lobbying, the bishops and several Religious Right legal groups are active in court. They have filed lawsuits on behalf of employers who do not want to allow their employees to get birth control.

Results so far have been mixed. In mid-November, a federal court in Washington, D.C., ruled in favor of Tyndale House Publishers, an evangelical publishing firm that said it did not want to provide Plan B pills, IUDs and other forms of contraceptives that it equates with abortion.

But a few days later, a separate federal court in Oklahoma ruled against Hobby Lobby, a chain of stores whose owner argued that providing access to birth control violates his religious liberty.

These early rulings are likely to be appealed. The matter may even reach the U.S. Supreme Court. In late November, the high court ordered the 4th U.S. Circuit Court of Appeals to reopen arguments in a case brought by Jerry Falwell Jr.’s Liberty University, which is challenging the birth control mandate. The appeals court had dismissed the case, arguing that the matter is not ripe for litigation because the mandate is not fully in place yet.

 

‘Faith-based’ funding

The theory behind the “faith-based” initiative is that government can award taxpayer money to religious organizations that in turn will provide various secular services to those in need. Religiously affiliated charities have benefited from public funding for years, but the concept really took off during the George W. Bush presidency.

Advocates of church-state separation have many concerns about the initiative. Religious groups, for example, are expected to provide services in a secular and even-handed way, but it’s unclear if anyone from the federal government ever checks on this. It’s more likely that problems are not addressed until someone raises them – an unlikely scenario for vulnerable populations such as the poor or those grappling with substance-abuse issues.

Americans United and other groups had hoped Obama would end or drastically revise the Bush initiative. He has not done that, but at the same time he hasn’t expanded it.

There is some evidence that the administration is exercising a little more oversight over some faith-based programs. In 2011, the Department of Health and Human Services declined to continue a grant that had been given to the U.S. Conference of Catholic Bishops (USCCB) to provide services to victims of human trafficking.

The USCCB had told sub-contractors that they could not use any of the public money for abortion or contraceptive services. Advocates for the victims argued that this made no sense, since many of the women who had been trafficked had been sexually assaulted and needed comprehensive care.

Prior to the administration’s decision to end the grant, the American Civil Liberties Union of Massachusetts filed a lawsuit challenging the funding. The ACLU argued that church officials were using taxpayer funds in a manner that was tailored to their religious beliefs.

A federal court agreed. The matter is now on appeal, and the bishops have targeted the case, fully aware that a loss could jeopardize their continued access to the public purse.

Baltimore Archbishop William Lori, chair of the bishops’ Ad Hoc Committee for Religious Liberty, is clearly worried about the outcome.

“Indeed, all faith-based service providers are threatened, because the court’s novel rule severely restricts the ability of government to accommodate any contractor’s religious commitments, Catholic or otherwise,” Lori asserted.

Other disputes over faith-based funding are expected to surface this year. For example, in the wake of Hurricane Sandy, which struck the East Coast in October, some orthodox Jewish groups have been pushing for federal aid to rebuild synagogues.

The Federal Emergency Management Agency often offers grants and other forms of taxpayer assistance to homeowners in the wake of devastating storms, but traditionally such aid has not been extended to houses of worship. The Obama administration is being pressured to change the rules.

Similar issues could arise over a federal program that would offer tax aid to building owners who retrofit their facilities to make them more energy efficient. “Green” subsidies have not been offered to houses of worship, but efforts are under way to change the rules to make religious facilities eligible.

 

‘Faith-based’ job bias

Closely related to faith-based funding is the issue of religiously based employment discrimination in programs paid for by the taxpayers. The issue has lurked just below the surface of Obama’s faith-based initiative during his first term. While the administration has been loath to address it, church-state separation advocates are hoping for some movement during his second term.

Obama’s relationship with this issue is complicated. As a candidate in 2008, he gave a major speech in Zanesville, Ohio, during which he promised to make changes to the faith-based programs that had been put in place during the Bush presidency.

Among those changes, Obama said, was ditching a Bush policy that permits religious groups to accept taxpayer money for social services yet still discriminate in hiring. Under this policy, for example, a fundamentalist Christian group can accept a large federal grant to run a center for troubled adolescents yet summarily refuse to hire qualified mainline Christians, Jews, Muslims, atheists, etc.

Americans United and other advocates of church-state separation applauded the Obama speech but were disappointed after he took office and stepped away from the vow. Administration officials, instead, announced that issues of hiring bias would be examined on a case-by-case basis.

In fact, the Bush-era status quo is in effect, and no ministries are being denied funding for discriminatory employment practices.

It’s unclear why Obama shifted positions on this matter. Congressional advocates of church-state separation such as U.S. Rep. Robert Scott (D-Va.) have raised the issue with administration officials (including Attorney General Eric Holder) several times, but it’s obvious the Obama team doesn’t want to talk about it.

AU and other groups intend to keep raising the subject and are hopeful that the administration will reconsider its position during Obama’s second term.

 

Federally funded school vouchers

In 2004, Congress authorized a taxpayer-funded voucher plan to pay for tuition at religious and other private schools in Washington, D.C. Described originally as an “experiment” that would last five years, the scheme continues to be funded eight years later.

Obama says he doesn’t support the program, but it has been kept alive – and even expanded – due to political wheeling and dealing.

One of the plan’s biggest boosters, U.S. Sen. Joseph Lieberman (I-Conn.) retired last year. But Lieberman’s departure doesn’t mean the private school subsidy is without friends. House Speaker John Boehner (R-Ohio) is a big voucher advocate; in 2011, he successfully engineered an extension of the D.C. program as part of a budget deal.

Objective studies have shown that it has failed to boost the academic performance of the target audience. In addition, a Washington Post investigation recently revealed that several of the private schools accepting vouchers are unaccredited and offer questionable curricula.

One school taking part is affiliated with the Nation of Islam, a black separatist sect identified as a hate group by the Southern Poverty Law Center; another is based on the philosophy of an obscure Bulgarian psychotherapist.

But the plan’s main beneficiary has been the Catholic parochial school system. Most elite secular academies in D.C. charge steep tuition, putting them out of the range of the vouchers, which run from $8,000-$12,000.

Most Catholic schools charge less. The D.C. voucher plan has amounted to a taxpayer-funded bailout for Catholic schools that might otherwise have had to shut down due to declining enrollments.

“Congress is desperately looking for ways to cut spending,” asserted Americans United Executive Director Barry W. Lynn. “This outrageous boondoggle would seem to be a good place to start.”

Aside from the D.C. plan, vouchers could surface elsewhere, says Maggie Garrett, AU’s legislative director. Garrett notes that the Elementary and Secondary Education Act, one of the country’s largest education-related bills, is up for reauthorization this year. In past years, there have been efforts to add vouchers to this measure, and that very well may happen again.

 

Judicial appointments

The issue of judicial appointments doesn’t get as much attention as it deserves, but it’s one of the most important aspects of the president’s job.

Americans tend to focus on judges only when there is a vacancy on the Supreme Court. In fact, the president is responsible for filling vacancies on the entire federal bench. Since the vast majority of legal cases never make it to the Supreme Court, lower court judges are extremely important. They’ll end up deciding most church-state cases.

The McClatchy News Service reported in September that there are currently 76 vacancies in the federal court system, and that several judges who have officially retired are still working on senior status. Courts are overloaded with cases, and some observers have called the situation critical.

It’s the president’s job to nominate judicial candidates, who are then approved or voted down by the Senate. (The House of Representatives doesn’t get a vote on judicial nominees.)

Obama has been slow to fill vacancies, and prior to the election, Republicans in the Senate dragged their feet on confirmations, hoping Romney would win. With Obama back in office, there has been talk about speeding up the process.

All eyes remain on the Supreme Court. The high court is closely divided on ideological grounds. A departure could shift the balance.

Speculation continues to focus on Justice Ruth Bader Ginsburg. Ginsburg turns 80 this year and has had health issues. Her retirement would not affect the ideological split on the court, assuming Obama were to replace her with someone who holds similar views.

Justices Antonin Scalia and Anthony Kennedy both turn 77 this year. Neither has given any indication that he might retire, but a departure of either would give Obama an opportunity to perhaps dramatically reshape the high court.

Other church-state issues are sure to surface this year as well. For example, some members of Congress are expected to introduce bills to alter federal tax law and permit electioneering by churches and other religious institutions. Resolutions that endorse religion or seek to undermine church-state separation also pop up from time to time. Bills – and even constitutional amendments – promoting official school prayer, creationism and other forms of religion in public schools are a constant threat.000

Obama continues to speak well of church-state separation. In a pre-election interview with Cathedral Age magazine, he hailed separation as important to American life.

“The constitutional principle of a separation between church and state,” he said, “has served our nation well since our founding – embraced by people of faith and those of no faith at all throughout our history – and it has been paramount in our work.” (By contrast, Romney, who was interviewed at the same time, asserted that “the notion of the separation of church and state has been taken well beyond its original meaning” and asserted that some supporters of the concept “seek to remove from the public domain any acknowledgement of God.”)

Obama’s comments echoed previous statements he has made. In February of 2008, for example, he vowed that his version of the faith-based initiative would operate without “blurring the line that our founders wisely drew between church and state.”

But the president will be under intense pressure to compromise on religious liberty issues. And that means advocates of church-state separation must monitor developments carefully.

AU’s Garrett says it’s important to keep a close eye on any legislative and executive branch proposals that could affect religious freedom. In the nation’s capital, AU works in several coalitions alongside religious and public policy groups to address issues such as school vouchers, the faith-based initiative and threats to public education.

Garrett expects 2013 to be a busy year.

“Defending the church-state wall is an ongoing job,” Garrett said. “Thanks to the support of AU members and activists, we can be there to respond to these threats whenever and wherever they arise.”