Faith-Based Frenzy

Religious Right Wish List For Congress Includes Church Funding, Court Stripping, A Federal Marriage Amendment And More

In the wake of November’s elections, James Towey, director of the White House Office of Faith-Based and Community Initiatives, is convinced that America is clamoring for a “faith-based” initiative now more than ever.

President George W. Bush, Towey told attendees at a conference on faith-based initiatives in Washington Dec. 9, viewed his re-election in part as a referendum on the faith-based plan. Now that the president has been returned to office, he intends to push even harder for the plan, Towey said.

“As he looks to his second term, President Bush is now reviewing several general priorities, but he is renewing his commitment to faith-based and community initiatives,” said Towey. “I spoke with him last night, I saw him earlier, after the election. I think he feels very much that the election had, as part of the decision that American voters faced, [a part related to] his faith-based initiative. He very clearly staked out where he stood, and a majority of Americans supported that, and he will continue to do it in a way that is sensible and constitutional.”

Later in the speech, which was delivered before a conference sponsored by the Roundtable on Religion and Social Welfare Policy, Towey vowed to fight “secular extremists” who oppose the Bush church-funding gambit. He singled out Americans United and the group’s executive director, Barry W. Lynn, by name.

“Barry Lynn should send the president a dozen roses for all the fund-raising help this has given him,” groused Towey.

The Bush push to fund religious groups with tax money is likely to get a lot of help from some members of Congress. Although Bush failed during his first term to win passage of a wide-ranging faith-based bill, his allies in Congress are promising this year will be different.

“We want to come back to it,” U.S. Rep. Mike Pence (R-Ind.) told the conservative Washington Times Nov. 26. “We’ve got a new Senate and a conservative mandate from millions of voters who said ‘yes’ to traditional values.”

Pence claimed there is an “untapped reservoir” for Bush’s church funding scheme.

With the 109th Congress going into session this month, Americans United and other defenders of church-state separation know they will have their work cut out for them. The re-election of Bush and the increase in Republican majorities in the House of Representatives and Senate have emboldened the Religious Right. The groups want action on their agenda, and they want it now.

To keep them happy, Bush is likely to move quickly this month on his long-stalled faith-based initiative to award tax money to religious groups so that they may provide social services.

Bush unveiled the far-reaching proposal shortly after taking office in 2001. It was his first major domestic policy initiative, and the president obviously had high hopes for it.

Under Bush’s scheme, religious organizations would receive potentially billions in taxpayer subsidies to provide an array of social services, from helping drug addicts and persuading teenagers to forgo sexual activity to job training and providing beds and meals for the homeless. Bush insisted that proselytizing would not be part of these publicly funded efforts but then confused the issue by repeatedly visiting and praising groups that included heavy doses of mandatory religious activity, mostly fundamentalist Christian, in their programs.

A wary Congress refused to back the plan. A scaled-down version that mainly tinkered with the tax code to encourage more charitable giving passed the House and Senate but bogged down in conference committee. Frustrated, Bush issued a series of executive orders implanting as much of the faith-based initiative as possible without congressional approval.

Bush, however, is aware that executive orders have a serious vulnerability: They can be overturned with a pen stroke by a future president. He has pushed all along for faith-based legislation to make the program an enduring one. The new congress may be much more receptive to that overture.

Two sticking points remain: evangelism and religious discrimination in taxpayer-funded programs. Bush and his supporters in the administration insist that they do not favor allowing religious groups to take public funds and then require recipients of services to take part in worship as a condition of receiving help.

But critics say the president has repeatedly backed fundamentalist programs that do exactly that. These programs, opponents say, often assert that an alcoholic, drug addict or habitual criminal cannot overcome his or her problem without first making a life-changing religious profession that is, converting to a “born-again” Christian.

Such programs, critics say, are essentially religious conversion efforts that cannot be funded with taxpayer money.

The issue of hiring on the basis of religion has also been contentious. Opponents say allowing a religious group to take public funds and then impose religious requirements on employees is wrong and a violation of the nation’s civil-rights laws. Bush and his backers insist that religious groups must be permitted to hire and fire in accordance with their theological and moral tenets.

In the Senate, the initiative’s leading champion, Sen. Rick Santorum (R-Pa.), is still interested in passing his more modest measure.

“We plan to move it as one of the first things,” he told The Washington Times.

AU legislative staffers say it remains to be seen which version will get the big push in Congress the wide-ranging plan that directly funds religious groups or the changes to the tax code. The only question, they say, is one of timing.

As AU gears up for the new session of Congress, staffers in the Legislative Department are watching several other measures. A rundown follows:

The Federal Courts: Court appointments, and especially slots on the Supreme Court, are expected to remain flashpoints for the Senate in 2005. (The House of Representatives has no say over federal court nominees.)

Religious Right groups are salivating at the prospect of a Bush-dominated high court, but there are signs that the Democrats are ready to fight.

Chief Justice William H. Rehnquist has been diagnosed with thyroid cancer and has not been attending court deliberations this term. Rumors continue to circulate that Rehnquist will step down and that Bush will attempt to replace him with Justice Clarence Thomas.

Appearing on NBC’s “Meet the Press” Dec. 5, U.S. Sen. Harry M. Reid, Democratic minority leader, vowed to oppose a Thomas promotion.

“I think he has been an embarrassment to the Supreme Court,” Reid said. “I think that his opinions are poorly written. I just don’t think he’s done a good job.”

Meanwhile, Religious Right groups are gearing up for a fight. Jay Sekulow, chief counsel for TV preacher Pat Robertson’s American Center for Law and Justice, told The New York Times in December that his group has put aside several million dollars dedicated for the first battle over the Supreme Court.

“There’s a comprehensive game plan that will unfold upon the retirement [of a justice],” Sekulow said. “It’s already in process. It’s going to include everything from media, paid media, to grass roots in various states where senators are up for re-election in ’06 to position papers on potential nominees.”

Churches and Politics: During the election, Religious Right groups were furious that their attempts to mobilize churches on behalf of the Bush campaign were often stymied by federal tax law.

The Internal Revenue Code prohibits 501(c)(3) tax-exempt groups from endorsing or opposing candidates or intervening in partisan campaigns. Religious Right groups say the provision stifles their free speech and want to see the regulation repealed.

U.S. Rep. Walter B. Jones (R-N.C.) is the leading congressional proponent of the tax code change. Jones has promoted the idea for years, and while he has whipped up quite a lot of fury on the Religious Right, it hasn’t translated into much action on Capitol Hill.

In October of 2002, Jones engineered a House vote on his bill, which he euphemistically calls the “Houses of Worship Free Speech Restoration Act.” It was easily defeated, 239-178, with 45 Republicans voting no. Companion bills in the Senate have never even received a floor vote.

Jones has apparently failed to win over some of his GOP colleagues, who fear that repealing the IRS language will lead to religious conflict.

Nevertheless, with Religious Right groups demanding action, congressional GOP leaders may be forced to schedule another vote on the Jones bill prior to the 2006 mid-term elections.

Court Stripping: Religious Right leaders and their congressional allies are eager to pass legislation that would deny the federal courts the right to hear certain types of cases. The controversial provision, called “court stripping,” used to be a fringe idea relegated to the likes of former Sen. Jesse Helms (R-N.C.). These days, it’s one of the Religious Right’s favorite causes and is promoted by several GOP lawmakers.

The theory behind court stripping is that Article III, Section 2 of the Constitution grants Congress the right to limit what types of cases the federal courts can hear. Although many legal scholars say the constitutional provision does not go that far, the Religious Right and its allies in Congress are convinced that by merely passing a law declaring that the courts can hear no more cases dealing with, say, school prayer, Congress would then be free to pass any laws on the subject it wants.

Many constitutional scholars argue that court stripping is unconstitutional, pointing out that it violates the constitutional separation of powers. Nevertheless, the House of Repre\xadsentatives last year passed two court-stripping measures: One that would have banned legal challenges to the Defense of Marriage Act and another that would bar cases challenging the use of “under God” in the Pledge of Allegiance.

Other members of the House have proposed court-stripping measures to protect school-sponsored prayer, government display of the Ten Command\xadments and other church-state issues.

Addressing the Christian Coalition in September, U.S. Rep. John Hostettler (R-Ind.) remarked, “Congress controls the federal judiciary. If Congress wants to, it can refer all cases to the state courts. Congress can say the federal courts have gotten out of hand. Enough is enough.” (See “Naked Power Grab,” November 2004 Church & State.)

The Senate has traditionally been cooler to court-stripping schemes, and none of the measures that passed the House last year made it through the Senate. But the influx of Religious Right allies in that chamber could give the idea new life there as well.

Critics say that if a court-stripping measure should pass, it could easily provoke a constitutional crisis. The federal courts would be unlikely to accept curbs on their authority emanating from Congress, setting the stage for a power struggle between the two branches of government.

Federal Marriage Amendment: Both the Senate and House last year voted down a constitutional amendment that would restrict marriage to one man and one woman, but Religious Right groups are expected to push the issue anew this year.

Religious Right organizations insist that the amendment is necessary to prevent legalization of same-sex marriages. Opponents point out that federal law already bans such unions and argue that the amendment is an effort to write the views of marriage favored by some conservative religious groups into the Constitution.

Constitutional amendments require a two-thirds vote in each chamber, making them difficult to pass. That isn’t expected to slow the Religious Right. Leaders of several groups have signaled that the amendment is their number one priority this year.

Vouchers and ‘School Choice’: Congress has already shown itself amenable to vouchers, passing a plan limited to the District of Columbia last year. Now some conservatives want Bush to push for a nationwide voucher or tuition tax credit plan.

Michelle Easton, president of the Clare Booth Luce Policy Institute, told the right-wing newspaper Human Events that she had discussed private school aid with Bush prior to the election. Easton said Bush was open to the idea but didn’t think he could get a bill through in the pre-election climate.

“A federal tuition tax credit like the one supported by President Reagan in the 1980s is long overdue,” Easton said.

In a separate Human Events article, Pence also said Congress must push for private school choice this year. Although he gave no specifics, Pence wrote, “Congress should adopt for education the block grant strategy used in welfare reform, promoting school choice and innovation through resources not red tape.”

Assorted ‘Culture War’ Issues: Religious Right groups are adept at winning votes from Congress that sometimes elevate style over substance or that are merely a form of political payback. Recently, for example, the U.S. Army announced that in order to settle a lawsuit brought by the American Civil Liberties Union, it would stop sponsoring Boy Scout troops. The ACLU argued that the Boy Scouts’ exclusion of atheists make it an inappropriate organization for sponsorship by any unit of government.

As it turns out, the Army sponsors only about 400 of the more than 120,000 Boy Scout troops in the country. And even though Army officials entered into the agreement voluntarily, furious Religious Right groups have demanded that Congress act. Some type of legislation that would void the agreement and guarantee the right of the Army to sponsor scout troops is expected.

Members of Congress allied with the Religious Right are also intervening in a local dispute over a cross that is displayed on public property in San Diego, Calif. The cross atop Mount Soledad has been the subject of years of litigation, and in November voters approved a ballot measure to allow the city to sell the land.

Two Republican House members from California, Reps. Randy Cunningham and Duncan Hunter, added an amendment to a huge spending bill that declares the site a war memorial. The legislation, which was signed by Bush, isn’t expected to end the legal wrangling but will ensure that the matter drags through the courts for several more years.

How much of this agenda can the Religious Right pass? Staffers in AU’s Legislative Department warn members not to be complacent or to assume that this agenda is too extreme to advance. Ideas that seemed far-out just a few years ago, such as court stripping, now pass the House with ease.

The altered landscape in the Senate is especially troubling, AU legislative team members say, and protracted “culture war” battles in that chamber are a real possibility.

Since the Republican takeover of Congress in 1994, the House has passed numerous reactionary measures. Most have been blocked in the Senate, traditionally a more deliberative body.

But now that dynamic is changing. Republicans now hold 55 seats, and four new senators elected in November are close to the Religious Right.

Under Senate rules, Democrats still have a potent weapon to block extreme measures. It takes 60 votes to end a filibuster and bring a controversial measure to a vote. Democrats have used the filibuster technique in the past to block a handful of extreme Bush judicial appointments and other measures, but now the Republican leadership is trying to change the rules and allow bills to pass with a simple majority.

The legality of the GOP leadership’s move is questionable, and the matter may end up before the Supreme Court, but the fact that such a dramatic change is even being considered rewriting the rules like this has been called the “nuclear option” is evidence of how much things have changed in the nation’s capital.

Aaron Schuham, director of legislative affairs for Americans United, said the organization expects a challenging congressional session. He said AU will be calling on its members to communicate their concerns to members of Congress.

“We will face several major legislative challenges in the church-state area early in the 109th Congress, and we will need to mobilize all of our organizational resources for these battles,” Schuham said. “We will need the help of every AU member in contacting members of Congress to convince them to oppose radical bills, such as the faith-based initiative, church politicking, the Federal Marriage Amendment and court-stripping legislation. Americans United will also be a leader in fighting Supreme Court nominees if their records show a hostility to church-state separation, and we will need our members’ help in educating Congress about this.”