Confrontation In Congress

Religious Right Allies Are Pushing School Vouchers And Other Threats To Church-State Separation On Capitol Hill, But This Time, The Measures Face A Steeper Climb

U.S. Rep. Ron Paul (R-Texas) has an unusual take on what the Founding Fathers had in mind when drafting the U.S. Constitution.

On the House floor in January, Paul lambasted the federal courts for issuing rulings upholding church-state separation and other civil liberties. And according to Paul, the Founding Fathers created a Constitution that gives Congress the authority to limit the power and reach of federal courts.

“Congress has a responsibility,” Paul maintained, “to stop federal judges from running roughshod over state and local laws. The Founders would certainly have supported congressional action to rein in federal judges who tell citizens where they can and can’t place manger scenes at Christmas.”

Paul made his comments while reintroducing legislation to strip the federal courts of the authority to rule on church-state cases.

It is not the only bill intended to erode church-state separation to find new life in the 110th Congress.

It is a frustrating and, at times, disheartening reality for church-state separation advocates. Each year, bills are rolled out that would mandate prayer in the public schools, divert tax dollars to religious schools, allow houses of worship to endorse candidates and make it more difficult for citizens to challenge government support of religion in court.

Leadership in Congress has switched from the Republicans to the Democrats, but there are still enough Religious Right advocates in both houses – and the Bush administration – to advance legislation intended to wreck the wall of separation between church and state.

Aaron Schuham, Americans United’s director of legislative affairs, says his department will work with longtime allies and create new ones to ensure that bad legislation does not wend its way to President George W. Bush’s desk.

“We are cautiously optimistic that the reintroduction of some familiar attacks on the church-state wall will not go anywhere,” Schuham said. “But it would be foolish to take anything for granted. There are new members of Congress who need to be educated on the importance of church-state separation and why the bills and measures opposing the wall should not advance.”

Bush, hobbled by low approval ratings in the polls, remains Washington’s strongest agent to advance the Religious Right agenda. Although the president has been a disappointment to some in his party – especially small-government conservatives and some social conservatives – he still retains much of the Republican Party’s loyalty and support.

Religious Right activists have signaled that they will continue to lobby the Senate to approve Bush’s picks to the federal court. Some of those groups also hold out hope that at least one more opening on the U.S. Supreme Court will occur on Bush’s watch.

Moreover, Religious Right lobbyists are surely buoyed by the president’s continued commitment to faith-based funding and his devotion to trying to persuade Congress to approve a federal voucher program that would benefit religious and other private schools.

During his State of the Union address, Bush urged Congress to re-authorize his controversial education program, called No Child Left Behind (NCLB), which would include an additional $300 million for a school voucher program. The New York Times reported that Bush’s voucher scheme would be made available to children in schools deemed “chronically underperforming” so they can transfer to private schools, the majority of which are religious in nature.

Without citing studies to suggest private schools offer sounder education than public ones, Bush said in his Jan. 23 address that student achievement could be improved by “giving families with children stuck in failing schools the right to choose someplace better.”

In the following days, Bush’s Education Secretary Margaret Spellings said she would “fight hard for the whole kit and caboodle, and that includes school choice,” the National Journal reported. Bush’s private school plan would entail providing vouchers worth up to $4,000 for tuition at private schools.

The usual voucher proponents fell in line behind Bush’s push for funding private schools.

Jeanne Allen, president of the Center for Education Reform, accused “some congressmen” of misleading the public about vouchers. She told the Associated Press that she believed the administration was committed to making a big push for the private school voucher bill and that she planned “to hold them to it.”

Another major proponent of vouchers, the Alliance for School Choice (ASC), was especially likely to throw its resources behind Bush.

In late January, Human Events reported that the administration’s chief of staff for the Education Department, Charles Hokanson, Jr., was leaving his post to become the ASC’s president and general counsel.

Hokanson is set to take over when longtime pro-voucher advocate Clint Bolick steps down in April. (In a Jan. 30 posting on The Wall of Separation, Americans United’s blog, AU staffer Rob Boston wrote that church-state separationists and public school supporters should be aware that, “Foxes aren’t just guarding the education hen house, they’re prowling throughout the place.”)

But there were signs that the Bush administration faces a tough battle in convincing Congress to reauthorize the No Child Left Behind Act with a private school voucher program attached.

Proponents of strong public schools and some pundits argue that No Child Left Behind is really the Bush administration’s tool to tar public schools as failing and promote private schools as the logical alternative.

When Spellings spoke at a luncheon of the National School Boards Association in Washington, she was confronted by questions on NCLB’s funding, its inflexible standards and whether the federal law is intended to promote private schooling.

“I reject completely…that this is an effort to privatize American education,” Spellings told the audience. The Washington Times reported that her defense of the act floundered, noting that some in the audience booed her remarks.

Members of both chambers of Congress also suggested that a private school voucher proposal would face a steep hurdle to passage.

The New York Times indicated that Rep. George Miller (D-Calif.), chairman of the House education committee, is not likely to take kindly to a voucher scheme.

“Private school vouchers,” Miller said, “have been rejected in the past, and nothing has changed to make them acceptable now. They are the same bad idea they have always been.”

The chairman of the Senate’s Health, Education, Labor and Pensions Committee, Sen. Edward Kennedy (D-Mass.), called vouchers ideological and not likely to help “this reauthorization move forward,” reported The Washington Post.

Beyond further debate over vouchers, congressional lawmakers introduced other measures that if enacted would prove detrimental to the church-state wall.

Bills were introduced in both chambers that would hamper the ability of citizens to challenge in court government actions promoting religion.

In late January, Sen. Sam Brownback (R-Kan.) reintroduced a bill that bars the recovery of attorneys’ fees from the government in successful church-state lawsuits.

Brownback, a Religious Right favorite, described S.415 as a measure to “prevent activist groups” from recovering attorneys’ fees “when they sue local cities and towns in cases related to public displays of religion and faith.”

Americans United lobbied against a similar bill in the last Congress, and AU’s Schuham says his department will again seek to stymie the legislation.

“The Brownback measure, if enacted, would create a major financial hardship for citizens to bring lawsuits against government sponsorship of religion,” he said.

Meanwhile, on the House side, bills promoting prayer in public schools and stripping the federal courts of the ability to hear church-state disputes were also re-introduced.

Rep. Paul, angered by federal court rulings on a host of hot button issues, sponsored the so-called “We the People Act,” to strip the federal courts of the ability to rule on church-state cases. H.R. 300 states that all federal courts, including the Supreme Court, “shall not adjudicate” cases involving religious liberty and several other social issues.

The measure further claims that federal courts have issued decisions on “religious liberty, sexual orientation, family relations, education, and abortion” that have “wrested from State and local governments” the final say over those issues.

Besides claiming the Founding Fathers would support measures limiting judicial review, Paul lashed out at federal judges.

Paul argued, in introducing his bill, that the only way to “resolve controversial issues like…school prayer is to restore respect for the right of state and local governments to adopt policies that reflect the beliefs of the citizens in those jurisdictions.

“It is long past time,” Paul concluded, “that Congress exercises its authority to protect the republican government of the states from out-of-control federal judges.”

Many constitutional law scholars have dismissed the notion that Congress has the power to bar the federal judiciary from hearing church-state cases and argue that limiting judicial review would cut off the ability of courts to protect fundamental rights, especially those of minorities.

 As Church & State went to press, Paul’s bill was lodged in the House Committee on the Judiciary.

Also, in the House, a proposed constitutional amendment allowing for public school prayer, usually introduced by former Rep. Ernest Istook (R-Okla.), resurfaced. (Istook retired last year and ran an unsuccessful campaign to become Oklahoma’s governor.)

Rep. John Murtha (D-Pa.) in mid-January introduced H.R. Res. 13 proposing a constitutional amendment to allow public school officials to include prayer in “official ceremonies and meetings.”

The amendment, if ratified, would invalidate court rulings that have barred organized prayer in the public schools and prevent citizens from challenging mandatory prayer and other religious activities in public schools.

Besides pushing for mandatory prayer in the public schools, Religious Right leaders and lobbyists also are pressuring Congress to rewrite federal tax law to allow houses of worship to endorse or oppose candidates for public office.

A leading proponent of church-based politicking has been Rep. Walter Jones (R-N.C.), who sponsors legislation that would allow houses of worship to intervene in political races while retaining their nonprofit tax status.

Jones now has additional help. Sen. James Inhofe (R-Okla.) has taken up the cause. In January, Inhofe introduced the so-called “Religious Freedom Act of 2007.” The measure mirrors the ones introduced by Jones.

The Rev. Barry W. Lynn, executive director of Americans United, blasted the measures as pandering to a narrow constituency.

“All of these measures are an affront to the separation of church and state,” Lynn said. “They are all strongly supported by Religious Right organizations. Their presence in Congress is a testament to the continued influence the movement has in Washington, D.C.

“These measures may stand little chance of passing – at least, we hope they don’t,” Lynn continued. “But they serve as a reminder that the battle to preserve the church-state wall is ongoing.”