Church-State

Supreme Court Declines to Review New Mexico Rejection of Wedding Photographer Case

The U.S. Supreme Court today rejected a request to consider Elane Photography v. Willock, a case brought by a wedding photography business that had been penalized for violating a New Mexico law against discrimination on the basis of sexual orientation. After the New Mexico Supreme Court unanimously rejected its free speech and religious liberty claims, the company appealed to the U.S. Supreme Court on the grounds that taking pictures is expressive activity protected by the First Amendment, and that the government has no right to force a photographer to take a particular picture. The Supreme Court declined to take the case.

People For the American Way is committed to religious liberty, freedom of expression, and LGBT equality, and recognizes that people who support both religious freedom and full legal equality for LGBT people can and do disagree on where lines should be drawn in such cases.  A small business person who wants to run a business that reflects their values can be a sympathetic figure. Some believe a mom-and-pop company whose owners have religious objections to same-sex marriage should have the right to turn away a gay couple under those circumstances.  But it is hard to identify a legal principle by which a business covered by an anti-discrimination law would be allowed to ignore the law on the basis of the owner’s religious beliefs on marriage, but not on the basis of his religious beliefs on segregation or gender inequality.

The tension between the rights of a business owner and the ability of a legislature to ban discrimination as a matter of public policy finds eloquent expression in New Mexico Supreme Court Justice Richard C. Bosson’s concurrence in the Elane Photography case.  The court unanimously upheld a finding by the state’s Human Rights Commission that refusing to provide services to a same-sex couple had violated anti-discrimination law. Bosson wrote that the court’s ruling means that the business owners “are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering.”

More from Bosson’s opinion:

On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins [the business owners] are free to think, to say, to believe, as they wish, they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life…In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs , so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

Bosson’s opinion recognizes that there are competing interests at play and that can make line-drawing difficult.  He treats the religious liberty questions respectfully.

Of course, that hasn’t stopped Religious Right from portraying the decision, and Bosson’s opinion, as pure tyranny.  A lawyer for the Alliance Defending Freedom called the decision “a blow to our client and every American’s right to live free.” Cases in Colorado and Oregon involving bakery owners that declined to make a wedding cake for a same-sex couple and faced punishment for violating anti-discrimination laws have generated similar rhetoric. 

Most Americans do not see tyranny in the balancing act that legislatures and courts are engaged in. They believe the principle staked out in PFAW Foundation’s Twelve Rules for Mixing Religion and Politics: it is legitimate for government to require religious organizations and individuals to abide by rules and regulations that promote the common good. A poll conducted by Third Way and HRC just before the U.S. Supreme Court decision overturning the Defense of Marriage Act found that 68 percent of Americans believe that small business owners should not be allowed to refuse service to gays or lesbians, regardless of their religious beliefs. When asked specifically about wedding-related services like catering, flowers, or cakes, nearly as many – 64 percent – were opposed to laws that would allow small businesses to deny services based on their religious beliefs.

PFAW

The Perils of Religious Politicking

Sen. Mark Pryor of Arkansas, a centrist Democrat facing a tough re-election campaign, launched a new political ad this month, and both the ad and the responses to it have highlighted the challenges of mixing religion and politics in ways that respect religious freedom, pluralism, and the spirit of the Constitution.

In Pryor’s new ad, he doesn’t talk about political issues or his opponent; he just talks about the Bible.

“I’m not ashamed to say that I believe in God and I believe in His word. The Bible teaches us no one has all the answers. Only God does. And neither political party is always right. This is my compass, my north star. It gives me comfort and guidance to do what's best for Arkansas. I’m Mark Pryor, and I approve this message because this is who I am and what I believe.”

The centrality of faith in Pryor’s life is well-known. But the ad was slammed by Brad Dayspring at the National Republican Senatorial Committee, who mockingly suggested the ad contradicted comments Pryor had made last year: “The Bible is really not a rule book for political issues. Everybody can see it differently.”  But I don’t see the contradiction. In both, Pryor seems to be acknowledging that even people who look to the Bible for guidance can disagree on particular policy positions. Dayspring’s attack drew a surprising rebuke from Pryor’s Republican opponent, Rep. Tom Cotton, who called the NRSC response “bizarre and offensive.”

The ad has drawn a mixed response from progressive commentators. Ed Kilgore at the Washington Monthly praises Pryor for “basically saying the Bible teaches some humility and reserves wisdom and final judgment to Gold Almighty, not to his self-appointed representatives on earth.” But Paul Waldman at the American Prospect takes issue with Pryor’s “I’m not ashamed” line, suggesting it is a dog-whistle for those who believe the Religious Right’s charge that Christianity is under attack in America.

Waldman notes, however, that the ad could have been a lot worse, reminding us of this notorious Rick Perry ad from 2012 which starts with very similar “I’m not ashamed” language but then gets “much more vulgar.”

A more recent example of the “a lot worse” school of religion and politics came from Rep. Paul Broun of Georgia, who is currently running for the Senate. In a six-minute speech from the floor of the House of Representatives in September, he mixed personal religious testimony with Christian-nation claims that the government should be run according to his interpretation of the Bible.

Broun’s remarks start with a core Christian Reconstructionist principle: that God ordained family, church and government and gave each a specific area of authority. But, he says, because of “this mistaken idea that we’re supposed to have a separation of church and state, the family and the church have abdicated a lot of its duties over to government.” (Reconstructionists believe that God did not authorize government to be involved, for example, in education or the reduction of poverty; that role is meant for family and church.)

Broun calls the Bible “the basis of our nation,” and says the fact that we aren’t running society accordingly will mean the death of our Republic.  The founding fathers, he says, were “Bible-believing Christians” who believed that “every aspect of life should follow the dictates of God’s inerrant word. That’s what I believe in. That’s what we should all believe in.”

This message is not new for Broun. Last year Kilgore wrote about a Broun speech in which he said that evolutionary science is “from the pit of hell” and that the Bible is a “manufacturer’s handbook” that “teaches us how to run all of public policy and everything in society,” as well as our lives as individuals. “That’s the reason as your Congressman I hold the Holy Bible as being the major directions to me of how I vote in Washington, D.C.”

There are important distinctions between Pryor’s ad and Broun’s speeches.  It is helpful to look at them through the prism of People For the American Way Foundation’s 12 Rules for Mixing Religion and Politics. These “rules of the road” are meant to generate a broader conversation about how we can create and sustain a civic space that reflects the principles of the Constitution and the values of respectful civic discourse, one that welcomes the participation of people of all faiths and people of none. Consider this passage from the 12 Rules:

Public officials are free to talk about their faith, the role it plays in their lives, and how it influences their approach to issues, but must not use the power of their office to proselytize or impose particular religious beliefs or practices on others.

Pryor’s ad seems to be intended to keep to the appropriate side of this rule, where Broun clearly violates the rule by proselytizing from the floor of the House.

In addition, Broun, like David Barton and other Religious Right leaders, claims that the right-wing position on every political issue finds some grounding or justification in the Bible, which should be the final word on every policy matter.  Broun’s insistence that every aspect of law and society should fit his interpretation of the Bible also violates another rule, “It is appropriate to discuss the moral and religious dimensions of policy issues, but religious doctrine alone is not an acceptable basis for public policy.” In contrast, Pryor’s ad explicitly says that he doesn’t claim to have all the answers, even though he uses the Bible as his moral compass.

A Religious Right critic of Pryor’s ad broke another of PFAW Foundation’s rules: “Religion should not be used as a political club.” As blogger Jeremy Hooper noted, Andrea Lafferty of the Traditional Values Coalition was “outraged” by Pryor’s ad. She said his claim to be guided by the Bible “the furthest thing from the truth” because he had voted for the Employment Non Discrimination Act, which protects people from being discriminated at work based on their sexual orientation or gender identity. Lafferty is of course free to believe that fairness is not a biblical value; but she shouldn’t denigrate the sincerity of Pryor’s faith because he disagrees.

Still, Pryor’s ad is a cautionary tale about the fact that, as he himself has said, the intersection of faith and politics can be difficult to navigate.  It can come across as saying, “vote for me because I’m a Christian,” a message that fails to respect America’s constitutional ideals and growing religious pluralism. And it could be seen as uncomfortably close to the message of Mike Huckabee’s 2008 primary campaign against Mitt Romney in Iowa, which essentially boiled down to, “vote for me because I’m the right kind of Christian.” Candidates or campaigns that suggest only Christians, or certain kinds of Christians, are worthy of public office violate the spirit if not the letter of the Constitution’s prohibition on a religious test for public office. 

With Christian-nation advocates like David Lane organizing all over the country for the 2014 and 2016 elections, there’s little doubt that the months ahead will bring some downright toxic mixing of religion and politics.

PFAW

Challenging the Right on Religious Liberty

The ongoing campaign by the Religious Right and its conservative Catholic allies to redefine religious liberty in America – which has been covered extensively by PFAW and Right Wing Watch – is the focus of a new report released on Monday by Political Research Associates, a think tank that also monitors right-wing organizations. “Redefining Religious Liberty: The Covert Campaign Against Civil Rights,” was written by Jay Michaelson, who published a condensed version in the Daily Beast.

Michaelson’s report reviews the organizational players and the strategies they employ, among them: mixing fact and fiction; claiming that there is a war on religious liberty; and reversing the roles of victim and oppressor to portray as religious liberty “victims” people who claim a right to discriminate against others. He notes that Religious Right disinformation has had some success in shaping public opinion: in Minnesota last year a large plurality of marriage equality opponents believed that if marriage equality became the law, churches would be forced to solemnize same-sex marriages, even though there is universal agreement that the First Amendment guarantees that churches are and will always be free to choose which relationships to bless or not to bless.

The PRA report includes the following recommendations for social justice advocates:

1. Define and publicize the campaign to redefine religious liberty

2. Organize a unified response

3. Counter misinformation

4. Reclaim the religious liberty frame

5. Develop academic responses

6. Leverage religious communities

7. Ongoing research and monitoring

Religious liberty was also the topic of a forum at the Newseum in Washington, D.C., cosponsored by the Newseum’s Religious Freedom Education Project, Moment Magazine, and the Committee on Religious Liberty of the National Council of Churches. Moment, an independent Jewish Magazine, has also published a special Religious Freedom issue for March/April 2013.  At the conference, two large panels brought together a range of religious and secular voices to discuss and debate the meaning of religious liberty and the claims that liberty is under attack in the U.S. today. It's impossible to give complete coverage in a blog post but here are some highlights.

Charles Haynes, the First Amendment expert who heads Newseum’s religious liberty committee, noted that the broad coalition that came together to back the Religious Freedom Restoration Act in the 1990s is no longer.  Michael Lieberman, director of the Civil Rights Policy Planning Center for the Anti-Defamation League, suggested a reason: that the coalition had intended RFRA to be a shield against government restrictions on the free exercise of religion, but that conservative groups had turned RFRA into a spear used to attack anti-discrimination laws.

One central principle of PFAW’s Twelve Rules for Mixing Religion and Politics became clear: while people can agree on the broad principle that religious liberty protects the freedom to live in accord with one’s religious beliefs, that consensus breaks down quickly when deciding how law and policy should react when religious liberty comes into tension with other constitutional principles like equality under the law. Indeed, panelists strongly (but civilly) disagreed on to what extent organizations – whether religiously affiliated institutions or business corporations – should be able to claim exemption from anti-discrimination laws or the HHS requirement for insurance coverage of contraception. 

Richard Foltin of the American Jewish Committee argued for a shades-of-gray, rather than a black-and-white approach, saying organizations should be viewed on a spectrum, with churches and sectarian institutions on one end and corporations at the other. Foltin said the AJC has submitted amicus briefs in favor of marriage equality at the Supreme Court, but also believes that there are significant religious liberty questions that courts will have to deal with as marriage equality is implemented.  (As noted at another point during the day, the states that now recognize marriage equality all have somewhat different religious exemptions.)

Michaelson proposes five tiers of organizations with differing levels of claims to religious liberty: churches/denominations; religious organizations; religiously affiliated organizations; religiously owned business, and religious individuals. The right-wing, he says, keeps trying to “move the sticks” from the first three groups to the latter two.  He notes that the Mormon Church owns extensive business interests, including shopping malls, and says that if business owners are allowed to claim exemption from anti-discrimination laws and other regulations based on religious belief, many employees will have their rights and interests restricted. 

Author Wendy Kaminer argued that the religious liberty of institutions is over-protected rather than threatened, saying that she believes some claims for religious liberty are actually demands for religious power to impose their beliefs on others.  If business owners are allowed to claim a religious exemption from generally applicable civil rights laws, she asked, what would be the limiting principle to such claims? Could business owners cite religious beliefs to ignore child labor laws, or to refuse to hire married women?  Kaminer challenged what she called an emerging legal double standard: when it comes to taking government funds, advocates say religious organizations need a level playing field and should be treated like every other organization. But when it comes to free exercise claims, and groups like Catholic Charities say they shouldn’t be subject to generally applicable laws, they don’t want a level playing field but special privileges.

Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty, said that overblown rhetoric about threats to religious freedom is damaging to public understanding of religious liberty. She suggests that the first response to someone who talks about threats to religious liberty should be to ask them what specifically they are talking about.  For example, while people may be concerned when they hear about “an assault on religious liberty,” most Americans do not see a problem with requiring religiously affiliated institutions to abide by anti-discrimination laws or meet contraception requirements.

Legal scholar Jeffrey Rosen suggested that on church-state issues, the Supreme Court justices could be divided into three camps: religious supremacists, advocates of “religious neutrality,” and strict church-state separationists.  The separationists, he said, had their heyday in the 1970s and early 1980s, but that the courts have been moving more toward a “religious neutrality” approach, which he said in some cases is really a cover for the religious supremacists yearning for an openly religious state.  He said a landmark of the triumph of “neutrality” over separation was the 1995 Rosenberger case, in which the court said a public university could not deny funding from a religious publication because of its religious nature.  In the future, he said, Justices Breyer and Kagan may be willing to embrace a “religious neutrality” approach in hopes of winning votes to try to keep Robert and Kennedy from joining the Scalia-Thomas religious supremacists.

Mark Rienzi of the Becket Fund for Religious Liberty, which has filed lawsuits challenging the HHS mandate and which has urged the Supreme Court to uphold Prop 8 and DOMA, portrayed religious liberty issues not as part of a culture war but as the necessity in a pluralistic society of recognizing that differences exist and allowing everyone the maximum ability to live according to their beliefs. He suggested that most church-state conflicts are blown out of proportion and can be resolved relatively easy with a willingness to work around individual religious liberty claims. Kim Colby of the Christian Legal Society endorsed that view, and noted that the Supreme Court will likely be deciding cases in the near future about what constitutes a “substantial burden” on a person’s religious beliefs and what might qualify as a “compelling state interest” that would justify that burden.

Michaelson challenged Rienzi’s portrayal, saying that “religious liberty” itself has become a code word for a new tactic in the culture war against LGBT equality and reproductive rights, and that it was wrong to pretend there would be no victim if a business owner were granted the right, for example, to ignore laws against anti-gay discrimination.  Pharmacies, he said, used to have lunch counters that were segregated. Would it have been OK to justify that discrimination by saying there was another lunch counter down the street, the argument used by advocates for allowing pharmacists to refuse to provide some drugs based on their religious beliefs?

The ADL’s Lieberman said that from his perspective as an advocate for minority religions these do not seem like small or easily resolved issues, and said there was a clear prospect that individual rights would not be safeguarded if, for example, majoritarian school prayer were permitted.  Hoda Elshishtawy, legislative and policy analyst at the Muslim Public Affairs Council also noted the reality of a major power differential between members of majority and minority religions.  Dan Mach, director of the ACLU’s Program on Freedom of Religion and Belief, noted that there are widespread abuses in public schools, citing an example of a South Carolina public school that set aside a day explicitly intended to try to convert as many students as possible to Christianity.

Welton Gaddy of the Interfaith Alliance, who moderated the first panel, noted that even on the day the First Amendment was passed, not everyone agreed with it or agreed with what it meant. We’ve been working it out ever since then and can’t quit, he said.  Charles Haynes made a similar point in his closing remarks, noting that in spite of all the differences evident in how we apply First Amendment principles, the ability to continue having the conversation is a reminder of how well those principles have worked to protect religious liberty in an increasingly diverse nation.

PFAW

Advocate for Church-State Separation to Lead White House Faith Office

Good news out of the White House today for advocates of religious liberty and church-state separation: President Obama has selected Melissa Rogers as the new director of the Office of Faith-Based and Neighborhood Partnerships. She will also serve as a Special Assistant to the President.

Rogers is a widely respected scholar on religious freedom and an exceptionally thoughtful advocate for the position that the separation of church and state is a cornerstone of religious liberty. People For the American Way and PFAW Foundation have frequently worked in coalition with Rogers, particularly during her tenure as general counsel of the Baptist Joint Committee for Religious Liberty.  She is also a former director of the Pew Forum on Religion and Public Life and director of the Center for Religion and Public Affairs at Wake Forest University Divinity School.

Rogers was the first chair of President Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships, and in 2011 she was appointed to a subgroup of the State Department’s Religion and Foreign Policy Working Group. Rogers steps into her new position at a time when the definition and scope of “religious liberty” are being strongly contested in the public arena, with conservative religious and legal groups using the term to challenge health care reform and push for broad exceptions to anti-discrimination laws.

In addition, Rogers will face ongoing questions about an issue left unaddressed during President Obama’s first term: the president’s campaign pledge to ensure that organizations using federal funds to carry out social services cannot discriminate with those funds in hiring staff.

“It’s hard to imagine anyone who could do a better job than Melissa Rogers at dealing with these challenges,” says People For’s Executive Vice President Marge Baker. “The American people need a thoughtful and convincing voice like Melissa’s to help us sort through the real religious liberty issues as well as the phony ones.”

PFAW

Federal education vouchers funding creationism curricula

Federally funded private school voucher and tax credit programs are more numerous than ever. Moreover, studies show that the curricula in many of these programs have included the teaching of creationism.
PFAW

The Perils of Teaching About the Bible in Public Schools

Rob Boston at Americans United notes that the Arkansas House just voted to require the state’s Education Board to approve elective classes about the Bible if they meet appropriate standards.  The Supreme Court has said the Bible may be taught about in public schools when “presented objectively as part of a secular program of education.”

But teaching about the Bible without teaching it religiously is not an easy thing to do. It requires carefully designed curricula, well-intentioned and well-trained educators, and a commitment to meaningful oversight.  People For the American Way was part of a religiously and politically diverse group of organizations that worked together to produce the 1999 publication The Bible in Public Schools, a First Amendment Guide. That guide emphasized that how any such course is taught will determine whether it passes constitutional muster:

When teaching about the Bible in a public school, teachers must understand the important distinction between advocacy, indoctrination, proselytizing, and the practice of religion – which is unconstitutional – and teaching about religion that is objective, nonjudgmental, academic, neutral, balanced, and fair – which is constitutional.

But that’s not how if often works in practice. In 2000, People For the American Way Foundation published a scathing expose, The Good Book Taught Wrong: Bible History Classes in Florida Public Schools. The PFAW Foundation investigation found that “Bible History” classes were often being taught more like Christian Sunday School classes from a sectarian, Protestant perspective. Bible stories were treated as literal history. Among lessons and exam questions asked of students:

  • "If you had a Jewish friend who wanted to know if Jesus might be the expectant [sic] Messiah, which book [of the Gospels] would you give him?"
  • "Compose an explanation of who Jesus is for someone who has never heard of Him."  
  • "Why is it hard for a non-Christian to understand things about God?"
  • "What is Jesus Christ's relationship to God, to creation, and to you?"
  • "Who, according to Jesus, is the father of the Jews? The devil."

That expose led Florida officials to yank those classes and revamp the curricula.

But more than a decade later, similar problems persist, as the Texas Freedom Network documented in a January report that found classes designed more to evangelize students to a literalist, fundamentalist view of the Bible rather than to teach about its role in literature and history. Included in the lesson plans examined by TFN were characterizations of Judaism as a flawed and incomplete religion, Christian-nation approaches to US history, and material “explaining” racial origins via the sons of Noah.

Are Arkansas legislators and education officials prepared to invest in the development of curricula, the training of educators, and meaningful oversight into how the classes are taught?

PFAW Foundation