Church, State And The 108th Congress

Church-State Separation Advocates Expect An Onslaught Of Hostile Legislation In The Wake Of The 2002 Elections

The Rev. Gary Bergel took a keen interest in the 2002 elections.

Just days before voters went to the polls, Bergel, head of a Leesburg, Va.-based Religious Right group called Intercessors for America, issued a statement addressing what he described as "the critical nature of the hour." Urging "all concerned Christians" to "unite in concerted prayer and fasting," he listed a series of political campaigns that needed divine intervention.

But Bergel did more than that. His tax-exempt group also steered its followers to the Capitol Hill Prayer Alert Committee Election Fund, a political action committee that offers financial support and political endorsements to candidates that embrace the Religious Right's agenda. According to the PAC's materials, the Fund exists in part to "oppose ungodly endeavors and campaigns."

A week later, Bergel issued another statement. This one, distributed the day after the election, boasted of the success he and other Religious Right leaders had helped generate on behalf of favored Republican candidates.

"While an answer to prayer would have been the maintaining of a GOP majority of the House of Repre­senta­tives...the Lord went way beyond and granted a shift in the U.S. Senate, and placed additional pro-life Governors in a number of states," Bergel said.

It's hard to say what role Bergel's prayer and fasting had in convincing God to help Republican candidates, but the work of groups such as his contributed to a GOP victory in November. He was one of many giddy Religious Right figures issuing hallelujahs Nov. 6.

Within hours of daybreak the day after the election, right-wing religious leaders representing supposedly non-partisan organizations were stepping up to praise the victories of Republicans and the party's new majority in the U.S. Senate.

Jerry Falwell, for example, said, "[I]t is apparent that the American people want the Republicans to get down to brass tacks in terms of addressing the chief political concerns that face our nation." Ken Connor, head of the Family Research Council (FRC), said Nov. 5 was a "remarkable night for the GOP," and said the results were "a significant victory for our pro-family issues."

These "pro-family issues," many of which have been more common on Religious Right wish lists than actual legislative calendars in recent years, may soon be front-and-center agenda items when the 108th Congress convenes in January. With Religious Right-backed candidates winning several key races on Election Day, the movement suddenly finds itself with allies controlling the House, Senate and White House. Advocates of church-state separation can therefore expect a barrage of hostile legislation to be considered and possibly signed into law ­ over the course of the next two years.

As a spokesman for James Dobson's Focus on the Family explained, a GOP congressional majority simply makes it easier for the Religious Right to push its agenda with less opposition.

"What [the success of GOP candidates] means is that the pro-family, pro-life legislation that was blocked in the Senate this session can be brought up next session with the knowledge that they will pass both houses and be signed by President Bush," said David Varnam, a policy analyst for the group. "That means we can get a partial-birth abortion ban, confirm conservative judges and not allow bad legislation to come up."

The FRC's Connor agreed. While he advised "guarded optimism," Connor said the Republicans' success in November "means that we can expect the GOP to advance the social issues agenda."

Many of the same goals that the Religious Right has been imploring Congress to act on will almost certainly receive ample attention. A ban on so-called "partial birth" abortion, for example, often considered the Religious Right's most emphasized issue, is already generating promises of action from the man slated to replace Tom Daschle as Senate majority leader.

"I will call it up, we will pass it, and the president will sign it," Sen. Trent Lott (R-Miss.) said in an interview with the Rev. Donald Wildmon's American Family Radio. "I'm making that commitment. You can write it down."

Lott's guarantee reportedly made some White House staffers nervous. The administration certainly agrees with Lott and the Religious Right on the issue, but the president's aides are concerned about the appearance of being beholden to far-right interest groups. 

Nevertheless, Bush strategists are coordinating with Religious Right allies on how to meet their needs. According to a report in The Washington Post, the White House held a conference call with Religious Right leaders within 48 hours of the elections. The message was simple: We're with you, but be patient.

Though the collaboration with the administration and Republicans in Con­gress is welcome news to groups such as the Christian Coalition and the Family Research Council, some Reli­gious Right operatives are indicating publicly that they want results, not excuses, from their powerful GOP friends.

"This Republican Congress was elected because of the pro-life vote, and they need to heed that vote," FRC's Connor told The Post. He added, "In no small part, the favorable outcome of this election for Republicans is a consequence of motivated pro-life voters who turned out to the polls." 

Connor's claim notwithstanding, there is little evidence that the Religious Right was the key factor in deciding many of the November races. Indeed, some surveys suggest voters backing Republican candidates did so to reflect support for Bush, not allegiance to the Religious Right. 

Fox News Channel hired Opinion Dynamics Corporation to conduct exit polls in states with competitive contests for governor, senator or both. In races for Colorado's Senate seat, Florida's governorship and both of Texas' statewide campaigns, for example, voters who identified themselves as "part of the conservative Christian political movement...known as the Religious Right" constituted less than 20 percent of all voters. Even among those voters, however, Democratic candidates in some cases garnered over a third of those ballots.

However, regardless of their actual role, the Religious Right helped a number of GOP office seekers in close races and will expect a payback. The research staff at Church & State identified key competitive races where a candidate emphasized Religious Right themes or received significant support from the movement. In 42 races selected before the election, the candidate tied to the Religious Right was successful in 27 elections, or 64 percent.

The Religious Right's insistence on cooperation may worry White House aides planning Bush's re-election strategy, but it will also put considerable pressure on the new House leadership.

Rep. Dick Armey (R-Texas) has served as House majority leader since 1994, but his retirement has cleared the way for fellow Texan Tom DeLay to be promoted to the job. To be sure, Armey was never a champion of church-state separation. He was an ardent backer of religious school vouchers and he even introduced his own constitutional amendment on government-sponsored public school prayer in 1995.

Armey's record notwithstanding, DeLay's hostility for the principle of church-state separation knows no bounds. As a high-profile political leader, DeLay is uniquely outspoken in his opposition to the First Amendment principle.

DeLay has supported and often co-sponsored nearly every piece of legislation aimed at undermining church-state separation for years. He favors the "faith-based" initiative, government display of the Ten Commandments, creationism lessons in public school science classes, voucher aid to church schools, public school prayer and church electioneering. He's urged parents to take their children out of respected Texas universities that aren't conservative and Christian enough for his standards and recently told a Religious Right audience that "only Christianity" provides an appropriate worldview.

In 2001, DeLay even went so far as to tell a gathering of TV preacher D. James Kennedy's followers that he supports "standing up and rebuking this notion of separation of church and state that has been imposed upon us over the last 40 or 50 years. You see, I don't believe there is a separation of church and state."

With DeLay moving up to serve as House majority leader, Rep. Roy Blunt (R-Mo.) is prepared to assume DeLay's old job as House GOP whip. This, too, is good news for the Religious Right, because Blunt is just as reliable an ally as DeLay. At the Christian Coalition's recent "Road to Victory" conference in Washington, Blunt pleased attendees with boilerplate Religious Right rhetoric. 

"Who is in control in Washington?," Blunt asked. "God is in control in Washington." He added that he believed the Founding Fathers knew that "separating church from state is different from removing God from country."

But DeLay and Blunt have moved to moderate their image since moving into their new congressional leadership roles. And they will be pressured by the White House to follow the administration's agenda and timetable, not those of Dobson, Robertson and Falwell.

One dust-up has already occurred. DeLay scheduled a House vote on a bankruptcy reform bill that included a provision designed to penalize anti-abortion activists who block access to women's clinics. Religious Right leaders were enraged and managed to marshal enough House members to scuttle the measure one ardently backed by the Republicans' big business allies until the anti-abortion rider was removed. 

Said Focus on the Family Vice President for Public Policy Tom Minnery, "The people who we have depended upon to be pro-life have turned their backs on us and we're very disappointed particularly with Tom DeLay." 

Thus, the upcoming congressional session is likely to see battles not only between church-state separationists and their opponents in Congress, but also between warring factions on the right. Here are some issues likely to be front and center.

 White House 'Faith-Based' Initiative

For the first two years of George W. Bush's presidency, few legislative proposals generated the controversy surrounding his "faith-based" initiative. The policy, once considered the signature domestic policy initiative of the Bush administration, became a source of frustration for the White House.

With Bush's enthusiastic support, the initiative slowly advanced part of the way through Congress. In July 2001, the House narrowly approved the plan, despite the fact that the bill drew opposition from the religious, civil liberties, civil rights, educational and social service communities.

In the Senate, the faith-based legislation went nowhere fast. In February 2002, Bush struck a compromise with Sen. Joe Lieberman (D-Conn.) on a bill known as the CARE Act (Charity Aid, Recovery and Empowerment), which avoided the most controversial "charitable choice" features of the president's original plan.

Though the bill was supposed to bridge the gap between supporters of the original plan and those who backed a watered-down approach, the Senate continued to show little interest.

With the 2002 elections shifting control back to the Republicans, political observers are confident the faith-based initiative will be back. Indeed, the next legislative version may well be worse than the compromise considered in the Senate this year.

With charitable choice advocates such as Sen. Rick Santorum (R-Pa.) pushing for Bush's approach with a Senate GOP majority, there will be less need to strike a deal with Senate Democrats, and Bush may have the votes to pass the more aggressive version he has sought. 

Making matters worse for First Amendment proponents, James Talent, the newly elected GOP senator from Missouri, was one of the godfathers of charitable choice while serving in the House in the 1990s. His presence in the Senate will only make faith-based legislation easier to pass.

Just as importantly, the White House has discovered successful strategies for using the faith-based initiative for partisan ends. Bush sent White House Office of Faith-Based and Community Initia­tives Director Jim Towey to appear alongside several GOP candidates engaged in competitive re-election fights this year. Of the six high-profile candidates Towey appeared with over the summer, five won their elections. The result will likely be additional exploitation of the issue over the next two years.

Judicial Nominees

President Bush's effort to stack the federal judiciary with judges who share his political bent was among the most contentious issues of the last two years. With the Senate changing hands in January, the White House and its allies in the Religious Right are anxious to see Bush's judicial push renewed aggressively.

Richard Land, head of the Southern Baptist Convention's Ethics and Religious Liberty Commission, gleefully singled out this issue after the election. Calling the Democrats' control of the Senate Judiciary Committee a "reign of judicial terror," Land said Bush will be able to place "judicial nominees who reflect his judicial philosophy" on the federal bench.

"Given the role the federal judiciary plays, desired or not, in modern society, the impact of the election, in terms of beginning to remake the federal judiciary in George W. Bush's pro-life, pro-family, limited government philosophy, may well be revolutionary," Land told the Baptist Press news service.

Even with a Democratic majority in the Senate in 2002, the White House rarely hesitated to pick a political fight by nominating far-right ideologues. With a Republican majority, Bush will be free to abandon any pretense of accommodating Democrats' request for centrist judges.

That will certainly be made easier with Sen. Orrin Hatch (R-Utah) taking the gavel to chair the Senate Judiciary Committee, which is responsible for holding hearings on judicial nominees. 

Hatch has endeared himself to Religious Right groups repeatedly over the years. At the Christian Coalition's "Road to Victory" conference in 1999, he cited Hal Lindsey's book, The Late Great Planet Earth, to warn the crowd that the end of the world may soon be at hand. At this year's Coalition event, he pleased attendees by accusing opponents of Bush's judicial nominees of "intense secularist bigotry" against Christian judges.

With Hatch leading the Senate Judiciary Committee, the White House will have a close ally ready to move nominees forward quickly. Bush seems eager to do just that.

Though Democratic opponents of Bush's judicial nominees will soon be in the minority, many note that filibuster tactics available to senators allow members to block nominees unless supporters can muster a 60-vote majority. With that option, the most extreme judges can be blocked, including possible nominees to the U.S. Supreme Court.

Church Electioneering

For most of 2002, virtually every Religious Right leader in the country brought intense attention to what they saw as a top objective repeal of the federal tax law's prohibition on church electioneering.

Rep. Walter B. Jones' "Houses of Worship Political Speech Protection Act" (H.R. 2357) was drafted by attorneys with TV preacher Pat Robertson's American Center for Law and Justice and was aggressively pushed by numerous Religious Right organizations. The measure would have changed federal tax law to allow houses of worship to use their personnel and other resources to endorse or oppose candidates for public office.

Federal tax law currently prohibits non-profit groups, including houses of worship, from intervening in partisan campaigns if they are tax exempt under Section 501(c)(3) of the tax code. H.R. 2357 would have lifted that regulation but only for houses of worship.

The House ultimately rejected the measure with a 239-178 vote.

The bill is almost certain to receive renewed interest this year. Some of the Religious Right's largest groups including the Christian Coalition, the American Family Association, Coral Ridge Ministries, Concerned Women for America, the Family Research Council and Focus on the Family believe the legislation will be key to using churches as cogs in a larger political machine.

More importantly, Jones has guaranteed his Religious Right allies that the first vote on this bill won't be the last.

"From the first day of the 108th Congress, I will continue this fight, because I believe this is a battle that can be won, and will be won," Jones said the day after his bill was defeated. 

Senate prospects for the bill remain murky. In August 2001, Sens. Bob Smith (R-N.H.), Tim Hutchinson (R-Ark.) and Jesse Helms (R-N.C.) un­veiled a companion measure to Jones' House bill. None of those three senators, however, will be in the chamber when lawmakers convene in January. Smith lost in a GOP primary, Hutchin­son was the only Senate Repub­lican incumbent defeated on Election Day and Helms retired. 

Religious School Vouchers

The issue of funding religious schools through tuition vouchers has been an ongoing agenda item for the Religious Right for many years. When Bush unveiled his "No Child Left Behind" legislation in 2001, he followed through on a campaign pledge and included vouchers.

The voucher provisions were apparently more of a bargaining chip than a serious attempt to fund religious schools. When congressional Democrats announc­ed they would never support the religious school aid scheme, the White House quickly abandoned it, much to the chagrin of the Religious Right.

With Republican majorities in the House and Senate, as well as voucher advocates in leadership positions in both chambers, a new push for voucher legislation has already begun.

For example, the Heritage Foun­dation, a right-wing think-tank in Wash­ington, hosted an event three days after the November elections featuring remarks from Clint Bolick, a pro-voucher attorney. The program had been planned in advance of the elections, but after the Republican takeover of the Senate, the group re-titled it, "New Con­gress? School choice!"

Meanwhile, Focus on the Family published a report in November alerting its members that "vouchers may return to Congress."

According to Focus, "School vouchers are expected to make a return appearance as soon as the power shift on Capitol Hill is complete." The group added that "school choice," a common euphemism for vouchers, is one of several conservative policy goals being "discussed with new enthusiasm" and "finding new life."

The Rev. Barry W. Lynn, executive director of Americans United, said supporters of religious liberty can expect to be very busy over the next two years on these and several other church-state issues.

"More so than at any time in recent history, the Religious Right will be helping steer policies in Washington," Lynn said. "Americans who value church-state separation will be needed more than ever to let lawmakers know the importance of upholding the First Amendment."