Religious Liberty

People For the American Way Foundation’s Twelve Rules for Mixing Religion and Politics is grounded in our commitment to religious liberty and church-state separation, and in the recognition that fundamental constitutional values sometimes come into creative tension.  Where to draw the lines in any particular situation can be a challenge, and even people who generally agree on constitutional principles may disagree about how they should apply on a given policy question. Nothing demonstrates this complexity more than the Obama administration’s efforts to ensure that American women have access to contraception and reproductive health services while addressing objections that such requirements would violate the conscience of some religious employers.

Religious Right groups and their allies at the U.S. Conference of Catholic Bishops have for months been portraying the Obama administration’s proposed rules requiring insurance coverage of contraception as totalitarian threats to religious liberty, even after the administration adjusted its initial proposal to address those concerns.  Some Religious Right leaders are sticking with their ludicrous “tyranny” message even after the Obama administration today released a further revision that broadens the number of religious groups that will be exempt from new requirements while still guaranteeing women access to contraception.

In describing the policy proposal, HHS Deputy Director of Policy and Regulation Chiquita Brooks-LaSure told reporters, “No nonprofit religious institution will be forced to pay for or provide contraceptive coverage, and churches and houses of worship are specifically exempt.” Under the plan, women who work for such organizations would have access to no-cost contraception coverage through other channels.

Here’s where it gets interesting: The new proposal won praise both from Planned Parenthood and NARAL Pro-Choice America – and from right-wing ideologue Bill Donohue of the Catholic League, who called it “a sign of goodwill by the Obama administration toward the Catholic community.”

In contrast, the proposal was slammed by the far-right Family Research Council and Concerned Women for America – and by Catholics for Choice, which said, “While protecting contraceptive access under the ACA is a win for women, the administration’s caving in to lobbying from conservative religious pressure groups is a loss for everyone.” Catholics for Choice warned that a broadened exemption for religious groups “gives religious extremists carte blanche to trump the rights of others” and that women working at Catholic organizations “are wondering whether they’ll be able to get the same coverage as millions of other women, or if their healthcare just isn’t as important to the president as their bosses’ beliefs about sex and reproduction.”

James Salt, executive director of Catholics United, portrayed the approach as a win-win. “As Catholics United said from the very beginning, reasonable people knew it was right to be patient and hopeful that all sides could come together to solve this complex issue. The White House deserves praise in alleviating the Church’s concerns.”

Leading advocates for women’s heath praised the new approach.  Cecile Richards of Planned Parenthood said the group would be taking a look at the details, but said “This policy makes it clear that your boss does not get to decide whether you can have birth control.” A statement from NARAL Pro-Choice America said the group“is optimistic that these new draft regulations will make near-universal contraceptive coverage a reality.”

Meanwhile, anti-choice advocates that have been pushing for rules that would exempt even individual business owners who have objections to providing contraceptive coverage for their employees complained that the new exemption would not extend to private businesses.

Concerned Women for America President Penny Nance said the new rules show Obama’s “intent to trample the religious liberties of Americans” and said, “When religious groups and individual Americans are forced to deny their deeply held religious convictions, it is not called “balance,” it’s called “tyranny.” The Family Research Council repeated Religious Right characterizations of the previous accommodation as an “accounting gimmick.”

People For the American Way believes that the government has a compelling interest in ensuring that women have access to family planning services. Indeed, Dr. Linda Rosentock, dean of the UCLA's school of public health and a member of the Institute of Medicine committee that was part of the review process on the HHS regulations, testified last year that the Centers for Disease Control has ranked family planning as one of the major public health achievements of the 20th Century.

People For the American Way is also deeply concerned about the efforts by  Religious Right groups and its conservative Catholic allies to re-define “religious liberty” in unprecedented ways that would allow groups to take taxpayer dollars without abiding by reasonable regulations such as anti-discrimination requirements – and to allow private employers and others to claim exemption from all kinds of laws based on “religious” or “moral grounds.”

In this case, we believe the Obama administration has acted in good faith to promote the nation’s public health interests while addressing concerns that those policies might burden religious liberty.  Our courts have long recognized that religious liberty, like the freedom of speech, is not absolute, and that policymakers must often balance competing interests. That is what the administration has done.

In an op-ed in the Los Angeles Times, PFAW founder Norman Lear describes the values that have guided his activism for the past 30 years: a belief that the right to individual liberty is not dependent on one’s religious beliefs and that the opportunity to pursue a decent life should be available to all. Now, argues Lear, those ideals are being held hostage by demagogues of many forms, and it is up to the American people to fight back.

The religious right leaders who got me engaged in politics often portray such things as free expression and equal protection for all Americans no matter their race, religion or sexual orientation as anti-Christian and un-American, as symptoms of cultural decline. I couldn't disagree more. What strikes me as un-American are the greed, deception and systematic corruption that have infected politics, business and so much of our culture in recent years. Some of those with power and privilege have worked to create a system that continually reinforces that privilege and power, leaving ever-increasing numbers of Americans without reasonable hope for the kind of life their parents worked to give them….

Call it the American dream, the American promise or the American way. Whatever term you use, it is imperiled, and worth fighting for. It is that basic, deeply patriotic emotion that I believe is finding expression — bottom-up, small-d democratic expression — in the Occupy movement. We can, and I would say must, fully embrace both love of country and outrage at attempts to despoil it. What better cause? What better time?

You can read the full op-ed here.

In a bit of good news, the Supreme Court today declined to hear the appeal of two Establishment Clause cases from Utah striking down as unconstitutional state-approved memorial crosses on public highways. But in dissenting from this decision not to take the case, Clarence Thomas has done us the favor of reminding Americans just how out of the mainstream he is.

While Thomas's dissent is an expansive critique of the Court's Establishment Clause jurisprudence, he does briefly remind readers just how far from the mainstream his views are.

Even if the Court does not share my view that the Establishment Clause restrains only the Federal Government, and that, even if incorporated [by the 14th Amendment to apply to the states], the Clause only prohibits "actual legal coercion," the Court should be deeply troubled by what its Establishment Clause jurisprudence has wrought. [emphasis added and internal citation removed]

Mitt Romney has made clear that he sees Clarence Thomas as the kind of jurist he would nominate to the Supreme Court. This is no surprise coming from someone who asked rejected Supreme Court nominee Robert Bork to lead his campaign's legal advisory team.

Thomas's dangerously narrow vision of the Establishment Clause is a good reminder of how much is at stake when Americans vote for president in 2012.

After more than a dozen years out of office, former House Speaker Newt Gingrich jumped into the GOP presidential campaign this week, rolling out his candidacy via social media and a friendly interview with Fox News Channel's Sean Hannity. Gingrich thinks he's just what is needed to save America from itself and its flirtation with Barack Obama and the rest of the evil of what he calls the "secular-socialist machine."

Much of the media attention of Gingrich's candidacy has centered around his role in the 1995 government shutdown, which Gingrich alone seems to think was a great success for the GOP, and his more recent urging of congressional Republicans not to fear a repeat. The implication seems to be that if you're the kind of voter who wants a more combative conservative willing to take down the federal government in order to bring down deficits, Newt may be your guy. But that kind of discussion -- and the crazily early poll-watching "which tier is he in?" stories -- miss something more important. Let's remind ourselves what kind of person Newt Gingrich is, and what kind of impact he has had on our public life.

Gingrich hasn't exactly been in hiding. In fact, he is at the center of his own machine, a 24/7 festival of self-promotion that includes an emailed "Newt and Callista Weekly Recap" courtesy of Gingrich Productions. If self-promotion were the top trait Americans were looking for in a president, Gingrich would be a shoo-in. But the job requires a bit more than that. People For the American Way's Right Wing Watch, Mother Jones and Media Matters have already posted compilations of Newtonian 'wisdom' from a long and dishonorable career. Once you start to consider characteristics like honesty and integrity, it becomes clear that Gingrich is unfit to lead our country.

The Newt McCarthyism

Gingrich is an enthusiastic participant in the right wing's divisive and destructive McCarthyism, portraying his political opponents as enemies of America's very existence. In To Save America, Stopping Obama's Secular-Socialist Machine, he warns, "America as we know it is now facing a mortal threat... The secular-socialist machine represents as great a threat to America as Nazi Germany or the Soviet Union once did... It's up to those of us who love our country to save America from the destructive, irreversible transformation that the Left have in store for us." In Real Change: The Fight for America's Future, he claims that the Obama administration (that would be the Faith-Based Initiative-continuing, National Prayer Day-celebrating, Easter Breakfast-sponsoring Obama administration) "has shown an unprecedented hostility to Christianity." He promotes ridiculous Religious Right claims about religious persecution in America, saying that Christians are threatened by "gay and secular fascism."

Gingrich spoke this spring at the Texas church led by John Hagee, whose support proved too controversial for John McCain in 2008. Newt combined two of his favorite threats, secularists and Islamists, into one memorable, if intellectually incoherent, sentence, declaring that he feared that his grandchildren could grow up "in a secular atheist country, potentially one dominated by radical Islamists and with no understanding of what it once meant to be an American." He told the Christian Broadcasting Network's David Brody, "In a sense, our Judeo-Christian civilization is under attack from two fronts. On one front, you have a secular, atheist, elitism. And on the other front, you have radical Islamists. And both groups would like to eliminate our civilization if they could. For different reasons, but with equal passion."

Newt is also placing himself at the forefront of the concerted conservative campaign to turn "American exceptionalism" into an attack on the patriotism of their political opponents. Candidates like Sen. Marco Rubio made American exceptionalism into a campaign theme in 2010, and hope to continue to smear Democrats as unbelievers in America's divinely-blessed founding and mission in the world. Gingrich has teamed up with Citizens United's David Bossie for a new "documentary" on American exceptionalism, A City Upon a Hill, The Spirit of American Exceptionalism, which features, among others, Donald Trump, Michele Bachmann, Allen West, Andrew Breitbart and Phyllis Schlafly.

Gingrich, an old hand at politics-by-smear, is responsible for much of the venomous state of our politics. In the mid-1990s, his GOPAC distributed to Republican lawmakers a memo titled "Language: a Key Mechanism of Control." The memo urged Republicans to use a set of denigrating words to describe their opponents and the Democratic Party: "decay, failure (fail) collapse(ing) deeper, crisis, urgent(cy), destructive, destroy, sick, pathetic, lie, liberal, they/them, unionized bureaucracy, 'compassion' is not enough, betray, consequences, limit(s), shallow, traitors, sensationalists, endanger, coercion, hypocricy, radical, threaten, devour, waste, corruption, incompetent, permissive attitude, destructive, impose, self-serving, greed, ideological, insecure, anti-(issue): flag, family, child, jobs; pessimistic, excuses, intolerant, stagnation, welfare, corrupt, selfish, insensitive, status quo, mandate(s) taxes, spend (ing) shame, disgrace, punish (poor...) bizarre, cynicism, cheat, steal, abuse of power, machine, bosses, obsolete, criminal rights, red tape, patronage."

Religious Liberty: Hypocrisy and Bad History

Gingrich, like other Religious Right political figures, postures as a defender of Americans' religious liberty against a deeply hostile elite, the "secular-socialist machine." Yet he joined with gusto the opponents of the proposed Park51 Islamic community center in Manhattan, which right-wing activists vilified as the "Ground Zero Mosque," saying, "There should be no mosque near Ground Zero in New York so long as there are no churches or synagogues in Saudi Arabia." In his book, Rediscovering God in America, Gingrich declared, "A steadfast commitment to religious freedom is the very cornerstone of American liberty." Regarding the Islamic center in New York, he said, "No mosque. No self-deception. No surrender."

Gingrich, like other Religious Right leaders, justifies his attacks on Islam by suggesting that it is not really a religion, saying radical Islam "is a comprehensive political, economic, and religious movement that seeks to impose sharia -- Islamic law -- upon all aspects of global society... Radical Islamists see politics and religion as inseparable in a way it is difficult for Americans to understand. Radical Islamists assert sharia's supremacy over the freely legislated laws and values of the countries they live in and see it as their sacred duty to achieve this totalitarian supremacy in practice." Yet while Gingrich decries radical Islamists' goal of achieving "totalitarian supremacy," one of his own organizations, Renewing American Leadership, is run by an advocate of the 7 Mountains Mandate, a dominionist theology that argues that Christians are meant to control the levers of power in every aspect of government and society.

Gingrich is ideologically joined at the hip to "Christian nation" pseudo-historian David Barton. In Barton's worldview, the First Amendment is not about protecting religious pluralism, but was only meant to keep the federal government from siding with one group of Christians over another. Barton believes the First Amendment should not apply at all to the states, but that states should be free to pose religious tests for office, and local religious majorities should be free to use public schools for proselytizing prayer. On Barton's radio show, Gingrich promised that if he ran, he would be calling on Barton for help, presumably the way Barton helped turn out evangelical voters for the Republican Party during George W. Bush's reelection campaign. It seems to be a mutual admiration society. When Barton and other right-wing activists were pushing for changes in Texas textbooks, they urged that Cesar Chavez and Thurgood Marshall be dropped, but that Newt be added.

Gingrich shares Barton's view of the federal courts as evil usurpers of the founding fathers' religious intentions. "There is no attack on American culture more destructive and more historically dishonest than the secular Left's relentless effort to drive God out of America's public square," Gingrich wrote in Rediscovering God in America. In a recent speech to the National Catholic Prayer Breakfast, Gingrich said the courts have been "especially powerful engines of coerced secularization," and that "From the 1962 school prayer decision on, there has been a decisive break with the essentially religious nature of historic American civilization." While in Congress, Gingrich promoted the Religious Right's false claims that courts had somehow banned students from praying, and repeatedly supported efforts to pass a constitutional amendment to return organized prayer to public schools.

Politics over Principle

In addition to intellectual arrogance, a shameless lack of principle may be Gingrich's most identifying characteristic. When the popular uprisings in the Middle East spread to Libya, Gingrich denounced President Obama for not immediately imposing a no-fly zone: "We don't need to have the United Nations. All we have to say is that we think that slaughtering your own citizens is unacceptable and that we're intervening." Less than two weeks later, when the U.S. joined other nations in imposing a no-fly zone, Gingrich attacked Obama, saying "I would not have intervened" and declaring that "it is impossible to make sense of the standard for intervention in Libya except opportunism and news media publicity." Newt clearly knows a thing or two about opportunism and publicity-seeking; getting some coverage for an attack on Obama was clearly more important to him than questions of U.S. policy in Libya.

Hubris

For all the far-right's charges that President Obama harbors anti-democratic tendencies -- Gingrich vowed to Hannity that he would abolish all the White House "czar" positions by executive order -- Gingrich's own behavior has made it clear that he sees himself as so superior to others, such an essential treasure for the nation, that the rules he would apply to others should not apply to him. When his second wife asked Newt how he could give a speech about the importance of family values just days after he admitted that he was having an affair, he reportedly told her, "It doesn't matter what I do. People need to hear what I have to say. There's no one else who can say what I can say. It doesn't matter what I live." That is a breathtaking level of hubris, even by presidential candidate standards. And when the CBN's Brody lobbed him the fluffiest of softballs by asking him to talk about his affairs in the context of his experience of God's forgiveness, Newt blew it by blaming his cheating on his love of country: "There's no question at times of my life, partially driven by how passionately I felt about this country, that I worked far too hard and things happened in my life that were not appropriate."

So Right and So Wrong

Gingrich's policy positions are pretty much standard fare in today's far-right Republican Party, including anti-worker, pro-corporate economic policies and support for criminalizing abortion. He has demonstrated his new-found commitment to the sacred nature of marriage by trying to buy the support of Religious Right activists in presidentially important Iowa, where he funneled about $200,000 into an unfortunately successful campaign to punish and purge three state Supreme Court justices who had voted to end marriage discrimination against same-sex couples in the state.

America is grappling with a set of deeply serious challenges at home and abroad. Americans would benefit from a substantive discussion of those problems and the policy choices that face them. What they're most likely to get from Newt Gingrich is toxic McCarthyism, petty and unprincipled partisanship, and preening self-promotion. Thanks but no thanks.

Cross posted on The Huffington Post

As originally written and introduced, the marriage bill that recently failed to pass in Maryland was very straightforward, simply removing the restriction that limits marriage to opposite-sex couples. Other laws in the state would have remained unchanged. However, a number of equality opponents expressed concern that some people would have to recognize the civil marriages of same-sex couples in violation of their sincerely held religious beliefs. Therefore, they introduced a variety of "conscience clause" amendments.

These amendments tell us a great deal about their supporters' real agenda, and it has nothing to do with a principled stand for religious liberty. The amendments did things like provide:

• that a public school teacher not be required to teach materials that promote same-sex marriage if the content of the materials violates their sincerely held religious beliefs.
• that a religious entity (or any nonprofit organization operated or controlled by one) need not provide adoption, foster care, or social services if providing the services would violate the entity's religious beliefs.
• that a government employee (like a clerk or judge) not be required to perform a civil marriage ceremony if performance of the ceremony would violate their sincerely held religious beliefs.

The common phrasing – violating someone's religious beliefs, as opposed to violating their First Amendment rights – is extremely important. It makes it sound like people's constitutional Free Exercise rights are being protected. But in Maryland and elsewhere, that is not the case: Provisions like these do not codify existing First Amendment rights to the free exercise of religion.

Neutral laws of general applicability that infringe on a person's religious beliefs have been upheld as not violating a person's First Amendment rights. For instance, in the 1990 Employment Division v. Smith case, the Supreme Court upheld Oregon's right to deny unemployment benefits to a person who had been fired for violating the state's anti-drugs laws (specifically, smoking peyote), even though the person smoked peyote as part of his religion.

In that case, with Justice Scalia writing for the majority, the Court ruled that the First Amendment does not allow a person to cite their own religious beliefs as a reason not to obey generally applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

Anti-discrimination laws have long required people to do things that may not be consistent with their religious faith. For instance, an election worker who believes God commanded the sexes to remain separate in public cannot force men and women to vote in different rooms. A white innkeeper who believes that God commands segregation must nevertheless open his inn to all races. An employer who believes God commanded women to defer to men cannot refuse to make women supervisors.

So opponents of marriage equality certainly aren't acting to protect anyone's constitutional right to religious liberty. What they are demanding is a religious exemption from laws they don't like.

As if that wasn't bad enough, it's only those who share their particular religious beliefs who they deem worthy of this special right.

Since the marriage equality bill in Maryland failed to pass, have these self-styled stalwarts of religious liberty insisted that the amendments they proposed be made into law anyway, as general religious liberty protections not targeting gay people as a class?

They have not.

Perhaps what drives them is animus toward gays and lesbians. Or perhaps it's an arrogant certainty that their religious beliefs and no one else's should be protected by law.

Whatever it is, it certainly is not a principled fidelity to religious liberty.

We faced a similar issue more than forty years ago, when people with religious opposition to interracial marriages found themselves in a society that no longer prohibited such marriages. Indeed, as the Virginia trial court judge wrote when convicting Richard and Mildred Loving of violating the state's prohibition of interracial marriage:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

After Loving v. Virginia, our nation did not empower that judge or any other public official to opt out of performing his duty to marry eligible couples simply because he personally opposed interracial marriages on religious grounds. Nor did we empower public school teachers to "opt out" of teaching students that such couples exist. No different standard should be applied with respect to gay couples.

Recently the right wing, including Sarah Palin and other prominent Republicans, has been loudly protesting the proposed construction of an Islamic center and mosque in the vicinity of Ground Zero. The center is intended to help build an interfaith community in downtown Manhattan. But to hear the National Republican Trust tell it, radical Islamic terrorist-supporters are planning to build a mosque next to the world trade center site in order to celebrate the 9/11 attacks. In one ad, the NRT Pac pairs disturbing images of 9/11 with this message:

"On Sept. 11, they declared war against us. And to celebrate that murder of 3,000 Americans, they want to build a monstrous 13-story mosque at Ground Zero. This ground is sacred. When we weep, they rejoice. That mosque is a monument to their victory and an invitation for more. A mosque at Ground Zero must not stand."

It’s hard to count everything that is wrong with this statement: there is no link between the organizers and extremist Muslim groups; the project is a community center, not just a mosque, complete with a swimming pool and art exhibition space; the building isn’t even visible from Ground Zero; and the list goes on. As New York Mayor Michael Bloomberg made clear in an eloquent speech, conservatives’ misleading rhetoric does a disservice to the American spirit of religious tolerance that was attacked on September 11.

In a statement, PFAW President Michael Keegan said:

Of course a Muslim community center should be allowed in lower Manhattan. This is not a close question.

Our country is built upon the bedrock principle that people of all faiths and of no faith at all are equally welcome in our nation’s civic life. No community should be told to move away because of its religion. Arguing that Muslims are unwelcome anywhere is a threat to religious liberty everywhere. Religious intolerance is not the American way.

Those political leaders who have spoken out against religious intolerance should be applauded—they have taken a stand for our most essential values. It’s deeply disappointing that so many of their colleagues chose instead to use this incident to inflame religious strife.

I just can’t get over the hypocrisy of Sarah Palin tweeting “Peace-seeking Muslims, pls understand. Ground Zero mosque is UNNECESSARY provocation; it stabs hearts,” while her Republican colleagues in the House of Representatives blocked a health care bill for New Yorkers and first responders sickened from inhaling toxins from the 9/11 attacks.

That’s right, Americans, the GOP will NOT be there to help if you are made permanently ill in the aftermath of a terrorist attack – but don’t worry, they’ll fight to protect the site of the attack from “peace-seeking Muslims.”

In today's 5-4 decision in Christian Legal Society v. Martinez, the Supreme Court correctly ruled that a publicly funded law school need not provide funding and recognition to a campus group with policies that discriminate based on religion and sexual orientation.

The University of California, Hastings College of Law, is a public institution with a viewpoint-neutral policy of recognizing and providing some funding to official student organizations, as long as the groups open their membership to all comers regardless of their status or beliefs. The campus Christian Legal Society (CLS) denies voting membership to those who do not subscribe to its religious beliefs, including those which condemn sex outside of heterosexual marriage. Because the CLS's discrimination on the basis of religion and sexual orientation violates the school's "all comers" policy, Hastings denied them official recognition.

All student groups, the CLS included, are subject to the same rules. But the CLS demanded – and the four arch-conservative Justices would have given them – a special favored status denied to other groups: the right to the funds and benefits of recognition from a public institution, along with an exemption from the rules that apply to any other group seeking those funds and benefits.

People For the American Way Foundation filed an amicus brief with other civil rights organizations in support of Hastings College of Law in the case. The brief emphasized that the Supreme Court has repeatedly upheld the right of the states to withhold public funding that would support discrimination. This is particularly relevant in the context of government-funded "faith-based initiatives," where conservative Christian groups are demanding the right to receive public funds and then use them to discriminate against gays and lesbians.

Had the four-Justice dissent carried the day, grave damage would have been done to the power of government to prohibit public funds from being used to forward invidious discrimination. Today is a victory for religious liberty.