Church, State And President Obama

With ‘9 in ‘09’ Project, Americans United Presses New Administration To Repair Bush Damage To Church-State Wall

On July 1, U.S. Sen. Barack Obama, then the Democratic Party’s presumptive nominee for president, traveled to Zanesville, Ohio, to give a major speech on “faith-based” initiatives.

Many advocates of church-state separation were on the edge of their seats. Obama had emphasized his Christian faith repeatedly on the campaign trail and was clearly making a play for religious voters. The Zanesville address would be his first major speech connecting faith and public policy. What would he have to say?

Initial media reports were confusing. An early Associated Press dispatch reported that Obama planned to expand the faith-based effort and permit religious social service agencies that take tax money to engage in proselytism and hiring discrimination.

Church-state separationists were taken aback – but not for long. The story turned out to be in error. While Obama did indeed pledge to expand and rename the faith-based office, he explicitly rejected taxpayer-funded evangelism and religiously based hiring discrimination with public funds.

Asserting that under President George W. Bush the faith-based office had never achieved its promise, Obama vowed to take it in a new direction.

“Now, make no mistake, as someone who used to teach constitutional law, I believe deeply in the separation of church and state, but I don’t believe this partnership will endanger that idea – so long as we follow a few basic principles,” Obama said.

“First,” he continued, “if you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them – or against the people you hire – on the basis of their religion. Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs. And we’ll also ensure that taxpayer dollars only go to those programs that actually work.”

With Obama headed to the White House this month, advocates of civil rights and civil liberties are cautiously optimistic that church-state relations in Washington will take a new direction – one that respects, not undermines, the wall of separation between church and state.

The faith-based initiative is just one of several issues ripe for change.

“The church-state wall took a lot of hits during the Bush years,” said Aaron Schuham, Americans United’s director of legislative affairs. “With a lot of hard work and support, we can begin to repair that damage.”

For Schuham and other members of AU’s legislative team, there’s no denying that the Bush years were immensely challenging. Bush’s first domestic policy act was the creation of the White House Office of Faith-Based and Community Initiatives, and he insisted that religious groups should be permitted to take tax funds and still discriminate on religious grounds when hiring staff. Bush even signed an executive order protecting this so-called “right.”

In public, Bush said he did not favor proselytism with public funds, yet much of the faith-based money was steered toward the administration’s fundamentalist Christian allies, groups whose leaders openly asserted that religious conversion is crucial to their success.

The initiative was also used for partisan political purposes. In 2002 and 2004, Bush administration officials and surrogates appeared at rallies on behalf of Republican candidates and suggested to pastors and voters that keeping the GOP in power was the only way to ensure that faith-based money would flow.

Ending those abuses is job one, as far as Americans United is concerned. But reforming the faith-based initiative is just one goal AU has for the Obama years. The organization also hopes to see a better caliber of judges appointed to the federal courts and seeks to sever the tie between the U.S. Justice Department and the Religious Right’s legal outfits, among other goals.

As the Bush era wound down last month, Americans United announced a new project titled “9 in ’09.” The effort lists a series of policy goals that AU hopes to see implemented this year.

The nine points are:

Repeal Bush-era executive orders promoting religious discrimination in the “faith-based” initiative: Congress never enacted Bush’s “faith-based” initiative, but he implemented much of it anyway, through executive orders and regulatory changes. Obama can repeal these orders with the stroke of a pen. AU is especially targeting the Bush order giving religious groups a so-called “right” to take in tax money yet still discriminate on religious grounds when hiring staff.

Ensure that faith-based grants aren’t misused for evangelism: AU will press for new rules stating that religious groups can’t preach on the taxpayer’s dime or pressure people in need to take part in religious worship. Religious groups that take part should be subjected to reasonable oversight, and all such projects should be examined objectively for effectiveness. Finally, Americans United will ask that the office be depoliticized and no longer used for partisan purposes.

• Appoint judges who respect the Constitution: Many of the judges appointed by Bush are hostile to church-state separation. Two prominent examples are Michael McConnell of the 10th U.S. Circuit Court of Appeals and William Pryor of the 11th U.S. Circuit Court of Appeals. Prior to his nomination, McConnell was an architect of the Religious Right’s effort to overturn legal precedents barring government support for religion. Pryor, who served as attorney general of Alabama, openly espoused Religious Right views.

AU will advocate for judges who will respect, not eviscerate, the church-state wall.

Reform the Justice Department: Under Bush, attorneys at the U.S. Department of Justice worked hand in hand with Religious Right legal groups to erode church-state separation. The department actually formed a special project, misleadingly called “First Freedom,” to roam the country looking for religious liberty cases to intervene in. Unfortunately, the department took the wrong side.

AU wants to see a Justice Department led and staffed by attorneys who understand that church-state separation is vital to the survival of religious liberty in America.

End federal support for religious school vouchers: Vouchers are usually a state issue, but a federally funded pilot program still operates in Washington, D.C. It has not been successful. Millions in public funds have been poured into religious schools, yet objective studies show no student improvement. It has done nothing to help the poor, serving mainly to prop up church-run schools.

AU will advocate for ending this program and returning the focus to reforming the public schools that serve the overwhelming majority of D.C.’s students.

Sever the tie between fundamentalism and the military: AU was among the first national organizations to blow the whistle on the disturbing ties between fundamentalist Christian groups and the U.S. military. AU will press for a military that respects the right of service personnel to worship or not as they see fit. Our military must not take a stand on theological matters.

Base public policy on science, not theology: During the Bush years, top government officials routinely consulted fundamentalist religious leaders when shaping public policy on issues like embryonic stem-cell research, sex education for young people and science class instruction about evolution. AU believes these issues belong to the realm of science, not theology, and will press for policies based on the consensus of the scientific community, not Religious Right ideologues.

Preserve the ban on church politicking: The 2008 election saw an unprecedented emphasis on the issue of church electioneering. The Alliance Defense Fund spent much of the year urging evangelical pastors to openly defy the law, culminating in a Sept. 28 event during which 33 pastors flagrantly defied federal tax law by endorsing and/or opposing candidates from their tax-exempt pulpits. AU reported the most egregious violators to the Internal Revenue Service.

The Religious Right planned this strategy to bring a new test case into the courts. If the IRS sanctions any of the churches whose pastors broke the law, the issue could quickly escalate in a legal battle. AU plans to be ready to do all it can to defend the ban on partisan politicking in houses of worship.

Block sectarian resolutions: For much of the past eight years, Religious Right groups were very successful in pushing resolutions or symbolic statements in Congress, state legislatures and local governments that promote its narrow version of Christianity. Such resolutions do not have the force of law, but many people still find them objectionable because they send the message that some Americans are second-class citizens based on what they believe (or don’t believe) about religion.

One especially troubling resolution introduced in Congress last year was replete with “Christian nation” propaganda. Although it did not pass, a new effort could be mounted this year. AU will work to stop this resolution and others like it.

• • •

Although Democrats have expanded majorities in the House and Senate, they fell short of obtaining the 60 votes required to shut off Senate filibusters. A minority faction can still block legislation and appointments, if its members vote as a bloc. Religious Right groups are pressing GOP leaders to use filibusters to block reform efforts. (One senator, John Kyl of Arizona, has even vowed to filibuster any Obama high court nominee who holds pro-choice views on abortion.)

The country could see an early fight over federal court appointments. Bush is leaving office with a number of vacancies left unfilled – 15 at the appellate court level and 36 at the district level, according to the Alliance for Justice.

Speculation about potential Supreme Court nominees has also been intense. Justice John Paul Stevens, regarded as the court’s most liberal justice, is 88; it is believed he will step down, perhaps after the court’s term ends in June. In addition, there has been speculation about possible retirements by Ruth Bader Ginsburg, 75, and Stephen Breyer, 70. (There are even rumors that David Souter, the high court’s strong defender of church-state separation, is interested in moving back to his native New Hampshire.)

Bush appointed two Supreme Court justices – Chief Justice John G. Roberts and Justice Samuel A. Alito. Neither is friendly to church-state separation. Obama is expected to go in a different direction.

In November, Cox News Service reported, “During his campaign for the president, Obama rarely discussed the Supreme Court. But when he did, he provided some clues to the kind of people he would nominate to the high court. At one point, he praised Breyer and Souter as ‘very sensible judges’ who ‘believe in fidelity to the text of the Constitution’ but also ‘look at what is going on around you’ in the real world. He also said the court has a ‘special role’ to protect ‘the vulnerable, the minority, the outcast, the person with the unpopular idea.’”

Judicial appointments will be a flashpoint for the Religious Right. These organizations are aware that many “culture war” issues like abortion, same-sex marriage and the role of religion in public schools are decided by courts. During the campaign, they hammered on the judge issue relentlessly but were unable to stir up voters beyond their own base.

Several bishops from the Roman Catholic hierarchy were also highly critical of Obama during the campaign, and some even issued pastoral letters warning congregants not to vote for candidates who support legal abortion. Since the election, a handful of reports have surfaced about priests telling Obama voters that they need to go to confession before receiving communion.

Catholic Church leaders often press for voucher subsidies for their parochial school system and are expected to continue this drive during the Obama years. (Obama has said he opposes vouchers but supports charter schools.)

Shortly after his election, Obama announced that his two daughters will attend Sidwell Friends School, a private Quaker-affiliated institution in Washington. Voucher advocates immediately seized on this, accusing Obama of being a hypocrite for sending his own children to a private school while opposing vouchers. (Obama’s defenders pointed out that the tuition at Sidwell Friends is $29,000 per year – far beyond the reach of any voucher – and that the unique security demands of presidential children make public school impractical.)

Obama’s ties to the progressive religious community may help him fend off some of these attacks. At the same time, the new president has wooed leaders of a more moderate evangelical faction, which could provide him with additional political cover. (See “Obama And The Religious Right.,”)

As the new administration settles into Washington, few expect church-state issues to be at the top of the agenda right away. Lingering uncertainly about the state of the economy makes that unlikely. But AU’s Schuham and other defenders of church-state separation are hopeful for fairly early action on some issues, especially the reform of the faith-based office.

During the Zanesville speech, Obama said he plans to rename the office, calling it the Council for Faith-Based and Neighborhood Partnerships. He has also promised to reach out to a broader array of religious groups, urging their participation. (See “Faith-Based Flare Up,” September 2008 Church & State.)

Americans United would like to see the faith-based office shut down. That’s unlikely in today’s political climate, but Schuham said the types of reforms Obama has promised to enact should help fix the initiative’s most glaring problems.

“Americans United has long said that the initiative’s two main defects are that it fosters taxpayer-funded proselytism and religious discrimination in employment,” Schuham said. “If Obama fixes these problems, it will be a significant achievement for those who believe deeply in preserving religious liberty.”

But fixing the faith-based initiative won’t be a snap. Last month, the Roundtable on Religion and Social Welfare Policy issued a report by two scholars who are seasoned observers of the faith-based initiative. The scholars noted that during his tenure, Bush made numerous regulatory and administrative changes to federal law in an effort to make it easier to steer tax funds to religious groups.

Robert Tuttle of George Washington University and Ira Lupu of George Washington University Law School point out in their analysis that Bush’s changes came at a time when the federal courts were becoming more open to the idea of public funding of religion. The Supreme Court subsequently made it more difficult for taxpayers to sue over faith-based funding, adding another layer of complications.

Defenders of church-state separation are pushing back. After Obama was elected, Americans United asked members and supporters to join an online campaign to urge the new president to end religious discrimination with public funds. More than 1,100 people responded, sending e-mail messages to the Obama transition team.

The transition team has also reached out to Americans United. Schuham and AU Executive Director Barry W. Lynn joined representatives from other religious, civil liberties and public policy groups at a meeting with transition team staffers on Dec. 8. The meeting lasted several hours and featured a free-wheeling discussion of numerous church-state issues. Reform of the faith-based initiative came up frequently. 

Other organizations are addressing the issue. The Brookings Institute, an influential liberal-leaning think tank, last month issued a report on the faith-based initiative listing 16 recommendations for the Obama administration. Although report authors E.J. Dionne and Melissa Rogers were unable to come to agreement on the issue of hiring discrimination, many of their other recommendations – such as depoliticizing the office and banning direct aid to purely religious activities – are in line with what AU seeks.

Advocates of civil rights and civil liberties are hopeful that Obama’s approach will mark a sharp break with Bush’s practices. They note that Obama, who has taught constitutional law in the past, has on several occasions endorsed the separation of church and state.

In 2004, when he was still new on the national political stage, Obama gave an interview about his faith to the Chicago Sun-Times.

“Alongside my own deep personal faith,” he said, “I am a follower, as well, of our civic religion. I am a big believer in the separation of church and state. I am a big believer in our constitutional structure…. I am a great admirer of our founding charter, and its resolve to prevent theocracies from forming, and its resolve to prevent disruptive strains of fundamentalism from taking root in this country.”

During a June 2006 speech on his faith, Obama cited “the critical role that the separation of church and state has played in preserving not only our democracy, but the robustness of our religious practice.”

Schuham said he welcomes language such as that after eight years of Bush. Now it is up to Americans United and our allies to see that Obama puts it into action.