Instant Replay

The Church-State Grudge Match Is Set To Resume In Congress

Christian Coalition Executive Director Randy Tate has some advice for Republican leaders in Congress.

Just days after the defeat of many of the Coalition's favorite GOP candidates and the resignation of former House Speaker Newt Gingrich, Tate was already strategizing, attempting to explain how and why the new Congress should be looking to the Religious Right for its legislative priorities.

Tate's answer to Congress' troubles? School vouchers.

In a Nov. 12 New York Times essay, Tate insisted that congressional Republicans might face even greater difficulties in the future unless they join him in pushing for public funding of religious and other private schools.

"The shakeup of Congressional leaders will prove to be only window dressing unless conservatives recognize the huge opportunity before them," Tate wrote. "At this stage, they have nothing to lose."

Twelve months ago, Religious Right groups such as Tate's Christian Coalition, many of which took credit for electing a Republican majority to Congress in 1994, were becoming restless and increasingly frustrated with the slow progress of a Congress that was supposed to be catering to their demands.

Not wanting to waste what they perceived as a valuable opportunity to work with a like-minded Congress, groups such as the Christian Coalition and Focus on the Family developed a "wish list" of legislative priorities, including school vouchers, education savings accounts for private school costs and even a constitutional amendment virtually erasing church-state separation from the Bill of Rights. They were encouraged by their allies in Congress who appeared poised to deliver on the most cherished ideas of their most reliable supporters.

As 1998 was beginning, there was every reason for the Religious Right to believe that its agenda would dominate Capitol Hill's political landscape. Virtually no one had ever heard the names Monica Lewinsky or Linda Tripp. Independent Counsel Kenneth Starr was running an uneventful investigation into a 20-year-old failed land deal in Arkansas and was receiving limited media attention. At that time, there was little doubt that Gingrich would probably serve as speaker of the House well into the new millennium, with Republicans enjoying significant seat gains in an off-year election.

What a difference a year makes.

As the 106th Congress is set to begin, there have been a series of dramatic changes. House Republicans enjoyed a 22-seat lead over the Democrats going into November's elections, but they came out with a significantly thinner 11-seat lead, and some of the candidates most closely aligned with the Religious Right were soundly defeated. Gingrich has been forced to resign as speaker.

But the more things change, the more they stay the same. Rep. Robert Livingston (R-La.) is set to assume the speaker's chair after receiving a 100 percent score on the last two Christian Coalition congressional scorecards. His views on vouchers, abortion and other social issues are virtually identical to Gingrich's. Republican Conference Chairman John Boehner (Ohio) has been replaced by Rep. J.C. Watts (R-Okla.), a Religious Right-favorite and consistent guest at Christian Coalition "Road to Victory" conferences.

The GOP leaders will also face unrelenting pressure from Religious Right operatives, who are demanding quick action of their agenda and hinting darkly of political damage for the uncooperative. The Christian Coalition's Tate told Focus on the Family's Citizen magazine, "If the 106th Congress does not immediately take up pro-family, conservative issues and talk about them, not just for one day but day in and day out; if they don't do these things, things will get worse before they get better."

Thus, many Washington insiders are expecting a replay of many of last year's church-state problems. The leaders of the 105th Congress, despite distractions, did cater to a lot the demands of their Religious Right allies, passing a voucher plan for the District of Columbia, extending "charitable choice" legislation, passing an education savings account plan, voting on an anti-separation constitutional amendment and introducing a litany of other church-state legislation.

With or without Gingrich, congressional power brokers still have church-state separation on their minds, and in many ways, regardless of their major setbacks, the threats to the First Amendment's religious freedoms are even more serious now than they were before.

"Despite all the distractions last year, Congress took an active and aggressive stance against church-state separation in 1998," said Barry W. Lynn, executive director of Americans United for Separation of Church and State. "In fact, we barely dodged a bullet with the so-called 'Religious Freedom Amendment,' and we had to rely on a presidential veto after Congress passed a voucher plan for the first time ever. Now, after all the controversy and factionalism, congressional leaders will be looking for issues that they can build a consensus around while pleasing their Religious Right base. Many observers expect things like vouchers and tuition tax credits to be those issues."

Religious School Vouchers

Though the push for public funding of private education reached a new high last year, these efforts may actually increase in 1998.

Several bills were considered last session that dealt either exclusively with vouchers, or had major voucher components in them. In January, for example, Senate Majority Leader Trent Lott (R-Miss.) introduced an education package built around a pilot voucher program. The legislation, called "Better Opportunities for Our Kids and Schools" (S. 1590), would have used federal tax dollars to underwrite 20 to 30 voucher "experiments" in selected cities. Ultimately, the program failed to move in the Senate, but it is likely to be reintroduced in 1999.

A voucher plan for the District of Columbia was also considered in the 105th Congress, and despite the threat of a presidential veto, it became the first voucher bill ever passed by both chambers of Congress.

"The District of Columbia Student Opportunity Scholarship Act of 1997," sponsored by House Majority Leader Dick Armey (R-Tex.), would have spent $7 million in public funds to finance vouchers for 2,000 public school students, less than 3 percent of the 77,111 children enrolled in D.C.'s public schools. The House passed the legislation on April 30, but President Bill Clinton vetoed the plan on May 20.

Of all of the voucher bills likely to receive attention in the 106th Congress, the one for the District of Columbia has the best odds of being reintroduced and sent to the president's desk again. As late as October, during budget negotiations with the president, Armey and Gingrich were still considering a voucher proposal for District of Columbia appropriations and even included a provision until forced to back down by the White House. A spokeswoman for Armey announced that while the D.C. voucher provision was removed from the bill as part of a compromise, the majority leader was looking forward to supporting the plan in 1999.

In fact, Armey has one more good reason to support the Religious Right's agenda after the Christian Coalition aggressively worked on his behalf to maintain his position as majority leader. Facing a serious challenge to his leadership position from Rep. Steve Largent (R-Okla.), the Tulsa World has reported that Armey requested and received the support of the Christian Coalition. "There was nothing Christian...about the way they muddled this," Largent said.

Another reason observers are expecting a D.C. voucher bill to receive serious consideration is a leadership change in Congress' committee that overseas appropriations for the District of Columbia.

Replacing Rep. Charles Taylor (R-N.C.) as chairman of the D.C. appropriations House subcommittee is Rep. Ernest Istook (R-Okla.). Istook, best known to church-state supporters as the lead sponsor of the so-called "Religious Freedom Amendment," is also an ardent supporter of vouchers, and under his leadership, the committee is almost certain to recommend another voucher program this year.

Whether the plan involves the District of Columbia or a broader jurisdiction, the Religious Right is demanding action, and Congress is likely to respond. Religious Right figures ranging from Cal Thomas to Oliver North have recently thrown their support behind the issue.

Meanwhile, voucher supporters have been bolstered by the Supreme Court's decision not to hear an appeal of the Wisconsin Supreme Court's ruling in favor of a Milwaukee voucher program. Many in the Religious Right have interpreted the high court's inaction as a "green light" for vouchers. This analysis is inaccurate, but is nevertheless likely to provide a boost to the cause.

Private School Tuition Tax Breaks

Sen. Paul Coverdell (R-Ga.) took the lead last year in sponsoring legislation that would have created "Education Savings Accounts." On April 23, the Senate passed the measure enabling parents to put aside up to $2,000 per year into tax-free IRA-like accounts to pay for school costs, including expenses for religious and home schooling.

Critics of the legislation considered the idea little more than a back-door voucher plan. Nevertheless, within two weeks of passing the D.C. voucher plan, Congress also passed Coverdell's bill. Ultimately, however, it met a similar fate to that of D.C. vouchers. The president vetoed the savings account plan in May.

Coverdell's bill is almost certain to come back this year, as it has the enthusiastic support of congressional voucher supporters and the Religious Right. Gary Bauer, president of the Family Research Council, recently presented his "pro-family agenda for the 106th Congress." Near the top of the list was his demand that "parents are afforded the opportunity to send their children to the school of their choice," code language for tax subsidies for religious education. In a recent fundraising letter, Bauer explained that his FRC is responsible for developing the legislation, crediting the FRC's "policy department" for its authorship.

The Christian Coalition also supports the measure. After Senate passage last session, the Christian Coalition's Tate dubbed the vote "great news for the American family." The Home School Legal Defense Association even issued an e-mail bulletin attributing congressional passage to an act of God.

'Religious Freedom Amendment'

Perhaps the most dangerous proposal for church-state separation in recent memory was Rep. Istook's proposed constitutional amendment, generally referred to as the "Religious Freedom Amendment." The proposal, if ratified, would have added 83 words to the U.S. Constitution that would have effectively removed the separation of church and state.

The amendment essentially dealt with three areas of church-state separation. According to legal analysis, language in the RFA would have allowed coercive school prayer, would have required public funding of religious institutions and would have encouraged government to "acknowledge" religion in the public square.

Ultimately, after three and a half years of partisan wrangling, Istook got a floor vote on June 4. Following six hours of contentious debate, the final tally was 224 in favor of the amendment, 203 against. Though a majority of the House voted to support the constitutional amendment, the RFA still fell 61 votes shy of the two-thirds needed for passage.

Though the amendment fell quite a ways short of garnering the necessary votes for passage, Istook insisted that it would be back. Constitutional amendments, he noted, rarely pass on their first floor vote. With that in mind, observers expect the amendment to be reintroduced. It remains to be seen if it will retain all three of its controversial parts, or if it will be pared down to deal only with one or two of its original goals.

'Charitable Choice'

In 1996, Congress passed comprehensive welfare reform that was ultimately signed into law by President Clinton. As part of that reform, federal law was changed to require states to include houses of worship and other sectarian ministries among the various organizations who were eligible to receive funds from the government. Sen. John Ashcroft (R-Mo.) was the chief sponsor of these changes, known as "charitable choice."

Critics have charged that the provision raises a series of constitutional and policy concerns because for the first time the law allows for "pervasively sectarian" groups to receive tax dollars while proselytizing.

While "charitable choice" already applies to several federal programs, the debate is far from over. Ashcroft, who is positioning himself for a run at the White House in 2000, worked for the better part of last year to apply his "charitable choice" provisions to every federal social services block grant to the states. Though his Charitable Choice Expansion Act was unsuccessful in the last Congress, experts predict that he will make identical attempts in 1999.

Julie Segal, legislative counsel for Americans United, considers this issue of critical importance.

"'Charitable choice' is a serious problem that may not receive the same media attention as other church-state issues," Segal said. "But I see 'charitable choice' as the single most important, viable, congressional threat to separation of church and state."

Other Legislation

Political observers expect Congress to consider many of the common and controversial issues raised by the Religious Right in recent years, including legislation on restricting abortion rights, defunding of the National Endowment for the Arts, a ban on human cloning, constraints on pornography on the Internet and efforts to limit the civil rights of homosexuals.

Meanwhile, several other pieces of church-state legislation that were considered during the last Congress are likely to receive attention again this time.

In addition to "charitable choice," Ashcroft last year proposed a bill called the "Equal Access Improvement Act." The original act, passed in 1984, forced public high schools that have extra-curricular student clubs not directly related to the curriculum to permit religious clubs as well. Ashcroft's measure would effectively take the Equal Access Act that currently applies to public high schools and extend the law to elementary and middle schools. The bill was not introduced until mid September -- late in the congressional session -- and it never received serious consideration. As such, it is likely to be introduced again this year.

Further, Rep. Robert Aderholt (R-Ala.) was the chief sponsor of the "Ten Commandments Protection Act," introduced on June 25. The bill would have empowered schools and other government buildings to display the Ten Commandments and featured language suggesting that Congress could limit the courts' power in dealing with these controversies.

Aderholt's scheme drew the ire of critics such as Lynn. "This proposed legislation violates not only the separation of church and state but the separation of powers as well," Lynn said. "Simply put, Congress has no authority to dictate to federal courts how they are to decide cases. The judiciary is an independent and equal branch, it is not some sort of congressional lapdog."

Though the bill was quickly endorsed by 10 cosponsors, including House Majority Whip Tom DeLay (R-Tex.), it failed to generate any momentum. It is certain to be brought back in the new Congress. In fact, at the first meeting of the newly elected leaders of the U.S. House of Representatives, DeLay presented a list of several bills to be considered in 1999, and the Ten Commandments legislation was near the top.

Observers also expect some congressional action on the Religious Liberty Protection Act. Developed to respond to the Supreme Court's striking down of the Religious Freedom Restoration Act, the bill was designed to restore the religious liberty rights placed in jeopardy by the Supreme Court's ruling in Employment Division v. Smith (1990). The proposal has broad bipartisan support, including that of Americans United, and should be considered in the 106th Congress. But the measure may hit some roadblocks because it has received significant criticism from some Religious Right figures, including Michael Farris, head of the Home School Legal Defense Fund.

In short, the 106th Congress promises to be a busy one for advocates of separation of church and state.

"While many people might perceive Gingrich's exit and the election results as a sign that Congress will avoid our issues, I disagree," AU's Segal concluded. "Rejection of Religious Right extremism in the November elections doesn't mean it won't be on Congress' agenda, members simply will be more cautious in how they present that agenda.

"We're still anticipating fights over vouchers, tax credits, charitable choice and even another constitutional amendment," she continued. "Ultimately, the threats to the separation of church and state will be less obvious, but not less dangerous."