Real Justice: Change Comes To Nation's Top Law-Enforcement Agency

It looks as though the legal landscape for church-state separation is due for an overhaul at the Justice Department.

Change is in the air at the U.S. Department of Justice – and it looks like it'll be for the good.

The Senate has confirmed Eric Holder at the nation's new attorney general. Holder has vowed to reverse course from many Bush administration policies. Most of the attention has focused on issues such as closing the prison at Guantanamo Bay and torture, but it looks as though the legal landscape for church-state separation is also due for an overhaul.

It's about time. As Neil A. Lewis reported in yesterday's New York Times, the Justice Department is poised to pull back from Bush policies that put an inordinate emphasis on cases involving religion.

Under former Attorney General Alberto Gonzales, the Justice Department launched something called "First Freedom," which Gonzales and others described as an effort to protect religious liberty rights in America.


In fact, Justice Department political appointees used the program to roam the country, looking for cases to butt in to. More often than not, the legal challenges were filed by Religious Right legal groups, and the Justice Department sided against church-state separation.

When the Salvation Army, which takes millions in tax funds annually, demanded that employees in New York divulge their religious affiliations and began pressuring them for being in the "wrong" faith or for having the "wrong" lifestyle, workers sued – and the Justice Department backed the Salvation Army.

When officials at a New Jersey public school balked at a student's request to sing a Christian song at a school-sponsored event, the Justice Department sided with the school.

When Florida's voucher subsidy was challenged in the state courts, the Justice Department weighed in with a legal brief urging public funding of religious schools – making the bizarre argument that failing to do so would somehow violate the federal Constitution.

Under Gonzales, the Department even issued a 43-page report claiming to detail instances of "religious discrimination." One of the cases involved a Texas college biology professor who declined giving recommendations to students applying to medical schools who did not accept evolution. The Justice Department hectored the man until he agreed to change the policy.

It's telling that Gonzales unveiled this monstrosity during a February 2007 meeting of Southern Baptist Convention leaders in Nashville. Gonzales lauded the executives of the militantly fundamentalist denomination and asked them to spread the word about the project.

At the time, Americans United Executive Director Barry W. Lynn observed, "Expecting the Bush administration to defend religious liberty is a little like asking Col. Sanders to babysit your pet chicken. This administration has repeatedly worked to destroy true religious freedom by merging church and state."

It's also telling that the First Freedom project was headed up by Eric Treene, an attorney who formerly worked for the Becket Fund, a right-wing legal outfit dedicated to eroding the wall of separation between church and state.

The Times reported that many Justice Department lawyers are eager for change. Many work in the Department's Civil Rights Division. Historically, attorneys in that division labor to make sure the nation's laws banning racial and ethnic discrimination are enforced. It's important work that under Bush was tossed aside as the Department focused on boosting the Religious Right's cramped view of the First Amendment in court.

The newspaper quoted a career lawyer in the civil rights division who said, "Many of us cannot wait for the changes."

Neither can I.