Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.
Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.
Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.
Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.
Listen to the full audio of the telebriefing for more information.
In its 5-4 ruling today in Hobby Lobby, the Supreme Court’s right-wing majority played fast and loose with the Religious Freedom Restoration Act (RFRA), the law that provided the basis for the claim that religious liberty rights conflicted with the Affordable Care Act (ACA). As Justice Ginsburg’s dissent pointed out, the clear language and history of RFRA stated that it was intended to “restore” the protection of religious liberty that the First Amendment provided before Justice Scalia’s infamous decision in Employment Division v. Smith, which said that there was no protection for religious people whose religious practices were substantially burden by general laws. As a participant in drafting and helping get support for RFRA in the 1990s, I can testify personally that this was true. The broad coalition of groups and legislators – from PFAW to the National Association of Evangelicals, from Orrin Hatch to Ted Kennedy – would never have agreed otherwise. But the 5-4 majority in Hobby Lobby nevertheless claims that RFRA was, in Justice Ginsburg’s words, “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”
This twisting of RFRA was significant in two ways to the Hobby Lobby result. First, it allowed the majority to rule that for-profit corporations like Hobby Lobby could claim rights under RFRA. As Justice Ginsburg pointed out, the Court had never so ruled before, since religious liberty protection properly belongs to individuals and religious institutions like churches. Second, it led to the majority’s ruling that there was a “substantial” burden” on religious exercise in the case, based on the claim that the religious beliefs of Hobby Lobby’s owners were offended by the ACA requirement. As Justice Ginsburg explained, pre-Smith law made clear that this kind of mere conflict with religious beliefs was not enough to prove a substantial burden. Instead, a requirement must actually restrict or burden “what [the person] may believe or what he may do.” Under this analysis, Ginsburg explained, any burden in this case was too attenuated to be substantial. After all, Hobby Lobby was not required to purchase or provide contraceptives, but simply to deposit money into undifferentiated funds that finance a wide variety of benefits; it was up to individual employees whether to utilize contraceptives.
These concerns are much more than historical or theoretical. First, the majority’s rationale could deprive millions of Americans of contraceptive or other coverage under ACA. Even if restricted to closely held corporations, more than 50% of all American workers work for corporations that could similarly claim under Hobby Lobby that their religious beliefs are sincerely offended by providing coverage for contraceptives or other services, and that would be enough to trigger RFRA. Second, if a corporation can prove it is substantially burdened under RFRA because its owners or board have a sincere religious objection to a government requirement, they can make exactly those claims to try to exempt themselves from anti-discrimination and other workers’ rights laws. The Hobby Lobby majority tried to downplay this concern by Justice Ginsburg, but specifically mentioned only that laws banning racial discrimination should be safe from this claim. For example, what about laws banning discrimination based on gender and sexual orientation? The 5-4 majority opinion is almost an invitation to businesses to further distort RFRA by making such claims.
In the Supreme Court’s decision in Hobby Lobby, the Court held for the first time ever that a for-profit corporation counts as a “person” under the Religious Freedom Restoration Act and that a “closely held” corporation basically shares the religious exercise rights of its owners. This leads American law into a treacherous minefield, as Justice Ruth Bader Ginsberg made clear in her dissent.
It’s worth pointing out, as Justice Ginsberg also noted, “’Closely held’ is not synonymous with ‘small.’” Hobby Lobby is a massive corporation employing some 13,000 people, but there are other closely held companies that are much larger. In a footnote, Ginsberg mentions family-owned Mars, Inc. and closely held Cargill, which are both among the largest five private companies in the country. Guess which is number two? Koch industries, with $115 billion in revenue and 60,000 employees. Brothers David and Charles Koch reportedly own 84 percent. Rounding out the top five private companies are Dell and Bechtel. Those five companies employ more than 436,000 people. What religious claims might their owners find useful to make in undermining laws that protect their workers?
Sometimes the damage from a bad court decision takes a while to make itself clear. Not so with last week’s U.S. Supreme Court ruling upholding a town’s practice of beginning council meetings with prayers that are overwhelmingly Christian. Conservative political and legal groups called it a win for religious freedom, but it only took a few days to see just how much unnecessary and divisive conflict the Court’s decision could generate in communities across America.
Late last week the mayor of the New Jersey town of Carteret cited the Supreme Court ruling to justify cancelling the use of the borough hall for a Saturday naturalization ceremony. He was upset that the Immigration and Naturalization Service refused to allow the ceremony to begin with prayer. The INS says its rules are meant to ensure that naturalization ceremonies are "conducted in a meaningful manner which is welcoming and inclusive and excludes political, commercial and religious statements." But Mayor Daniel Reiman said the INS could "host its godless ceremony someplace else." (It was held in Newark.)
What a sad object lesson for those aspiring American citizens and their friends and families. Who knows how many different faiths were represented among them? It shouldn’t matter, because one of the most precious benefits of being an American is that your rights and standing as a citizen do not depend on your holding any particular set of religious beliefs.
But don’t tell that to Al Bedrosian, a member of the Roanoke County Board of Supervisors in Virginia. Last week after the Supreme Court ruling, Bedrosian declared that prayers to open board meetings should be given only by Christians. It is shameful that Bedrosian holds public office in Virginia, home of James Madison and Thomas Jefferson and the birthplace of the First Amendment. Bedrosian argued publicly several years ago that Christians should “rid ourselves of this notion of freedom of religion in America.” He said Christians “are being fed lies that a Christian nation needs to be open to other religions” and called it one of the “greatest moments in US Senate history” when a group of Christians disrupted a Hindu religious leader who was giving an opening prayer.
Both Reiman and Bedrosian are misinterpreting the Court’s decision. But these episodes bring even greater clarity to a reality to which the conservative majority on the Supreme Court demonstrated “blindness” – in the words of dissenting Justice Elena Kagan. That is the exclusionary and divisive reality – as opposed to the theory – of government bodies opening their meetings with sectarian prayer.
The case decided by the Supreme Court came concerned the upstate New York town of Greece. For years, the town council has been inviting local clergy to open its meetings. Those clergy have been overwhelmingly Christian, and their prayers were sometimes highly sectarian, invoking “the saving sacrifice of Jesus Christ on the cross” or “the plan of redemption that is fulfilled in Jesus Christ.” These were not, as dissenting Justice Elena Kagan noted, ceremonial invocations like the “God save the United States and this honorable Court,” which begins Supreme Court sessions.
The town’s prayer policy was challenged by two citizens (one Jew and one atheist) who felt coerced by the invitations to Christian prayer, and who felt as if they were being made outsiders in their own town based on their religious beliefs. They argued that the practice violated the Establishment Clause of the First Amendment, which has been interpreted as preventing the government from favoring religion in general or any religion in particular.
Some people, particularly those in the religious majority, have a hard time seeing why such prayer is a big deal. As Paul Waldman writes for the Washington Post, “the ruling is about the privilege of the majority, the privilege to define your own beliefs, traditions, and practices as simply the water in which we all swim. If you’re in that majority, you tend to be shocked when anyone even questions whether those practices ought to be imposed on everyone and sponsored by the state.”
But imagine, as Kagan did, a Muslim who has come before the city council seeking a zoning variance to build an addition on her home. When she is asked to join in prayer celebrating the divinity of Jesus, she has the option of not participating, or leaving the room. Either option identifies her as somehow different from her neighbors and from the councilmembers who will decide the fate of her request. A federal appeals court had ruled that the town’s practice was unconstitutional because, even if town officials had no bad intent, the consequence of the nearly uninterrupted parade of Christian prayers was to signal that Christianity was favored, and to make unequal citizens of people of other faiths or no faith.
Unfortunately, five Supreme Court justices disagreed, saying even an overwhelmingly Christian and sectarian prayer practice is OK unless there is a pattern of prayers denigrating other faiths or proselytizing or unless there is evidence that people are being legally coerced or punished for not participating. The Court has given a green light to “Christian Nation” advocates like Al Bedrosian to demand that their city council or county commission allow their official meetings to be regularly opened with explicitly Christian prayers. Some Religious Right leaders have said that’s exactly what they’re going to do.
Right now, practices vary. Some government bodies don’t bother with prayer; others invite clergy to open meetings, with guidelines that prayers be respectful or nonsectarian. But even that nod toward pluralism is at risk: Jordan Sekulow of the American Center for Law and Justice said this ruling means government bodies can no longer make a distinction between nonsectarian prayer and “praying in Jesus’ name” and he told the Christian Broadcasting Network, “that will have an impact on a number of cases.”
It’s worth noting that some progressive Christians agree that “nonsectarian prayer” is a kind of oxymoron. But, says Washington Monthly blogger Ed Kilgore, that is not a reason to push for sectarian prayer; it is instead a reason to do away with legislative prayer altogether. He writes that the effort to push more prayer in official settings is “offensive to those who pray as much as to those who don’t.” The pro-church-state-separation Baptist Joint Committee had filed a brief in the case stating that “prayer is an expression of voluntary religious devotion, not the business of government.”
That brings us to a crucial distinction between what is constitutional and what is wise, particularly in a country that is increasingly diverse, with a growing number of people who claim no religious affiliation. As noted in People For the American Way Foundation’s Twelve Rules for Mixing Religion and Politics, “Some things that are legally permissible may still be damaging to religious tolerance and civic discourse, and should be discouraged.”
The Supreme Court did not rule that legislative bodies have to begin their meetings with prayer; it ruled that the Constitution allows them to. In spite of Justice Anthony Kennedy’s portrayal of legislative prayer as a unifying force, it seems likely that an aggressive push for more sectarian prayer to open official meetings will be anything but unifying. Elected officials should think twice before going down that road.
Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, said he prays that the Court is showing a way toward “a right kind of free marketplace of faith expression in American life.” But Moore is wrong: we already have a free marketplace of faith expression in America. The First Amendment has fostered a vibrant, flourishing, peaceful religious pluralism that is unmatched anywhere in the world. Christian media has a massive presence on television, radio, and online. But what too many “Christian Nation” advocates want, and what the Court is opening the door to, is a system in which a religious majority can more easily use the institutions of government to promote its religious beliefs and label others as outsiders.
And that is not the American Way.
In a 5-4 decision, the U.S. Supreme Court today overturned a ruling by the Second Circuit appeals court and upheld the practice of an upstate New York town that begins its council meetings with prayers that are almost always given by Christian clergy. Religious Right groups are celebrating the ruling; Ralph Reed announced that his Faith and Freedom coalition would use the ruling to “redouble its efforts” to encourage more prayers at city and county government meetings. Both the decision and the Religious Right's responses are likely to invite more religiously divisive church-state conflicts.
Justice Clarence Thomas used his concurring opinion to argue, as he has before, that the Establishment Clause of the First Amendment does not apply to the states at all; in other words, he believes there is no constitutional reason that a state cannot have an official religion. Fortunately, the decision in this case is far narrower than that.
It is, as Justice Stephen Breyer says in the opening sentence of his dissent, a “fact-sensitive” case. It did not revolve around the question of whether legislative prayer is unconstitutional – the Court has previously upheld legislative prayer in Marshv Chambers – but in part whether the way clergy were invited to give prayers to open town council meetings was sufficiently inclusive. In Breyer’s words,
“The question in this case is whether the prayer practice of the town of Greece, by doing too little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to promote the ‘political division along religious lines’ that ‘was one of the principal evils against which the First Amendment was intended to protect.’” [quoting from the Court’s 1971 decision in Lemon v Kurtzman]
Also at issue was whether a town council meeting, at which members of the public are appealing to councilmembers for specific action, is more susceptible to being a coercive environment than a prayer given by a chaplain to a group of lawmakers about to start their legislative day. For example, the council hears debates on individual applications from residents and business owners seeing zoning permits and other licenses. In her dissent, Justice Elena Kagan recognizes that the Court has upheld the historical tradition of legislative prayer, but writes that the town hall meetings in Greece are a kind of hybrid, “occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters.” That, she says, requires special care that each member of the community is respected as an equal citizen, something the Town of Greece has not done.
While the plaintiffs in the Town of Greece case did not argue that town leaders were motivated by religious bias, they argued that the selection process led almost exclusively to prayers being given by Christian ministers, and to prayers that were not just ceremonial invocations but quite explicitly sectarian. Kagan writes that town meetings need not be religion-free zones, saying that “pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality,” but concluded that the board of the Town of Greece did nothing to recognize religious diversity, and that its practice “does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.” She offered a hypothetical of a Muslim resident coming before the board to see a zoning variance to build an addition on her home:
“But just before she gets to say her piece, a minister deputized by the Town asks her to pray ‘in the name of God’s only son Jesus Christ.’ She must think – it is hardly paranoia, but only the truth—that Christian worship has become entwined with local governance. And now she faces a choice—to pray alongside the majority as one of that group or somehow to register her deeply felt difference….She does not wish to be rude to her neighbors, nor does she wish to aggravate the Board members whom she will soon be trying to persuade. And yet she does not want to acknowledge Christ’s divinity, any more than many of her neighbors would want to deny that tenet. So assume she declines to participate with the others in the first act of the meeting—or even, as the majority proposes, that she sands up and leaves the room altogether…At the least, she becomes a different kind of citizen, one who will not join in the religious practice that the Town Board has chosen as reflecting its own and the community’s most cherished beliefs. And she thus stands at a remove, based solely on religion, from her fellow citizens and her elected representatives.
Everything about that situation, I think, infringes the First Amendment…That the Town Board selects, month after month and year after year, prayergivers who will reliably speak in the voice of Christianity, and so places itself behind a single creed. That in offering those sectarian prayers, the Board’s chosen clergy members repeatedly call on individuals, prior to participating in local governance, to join in a form of worship that may be at odds with their own beliefs. That the clergy thus put some residents to the unenviable choice of either pretending to pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders. That the practice thus divides the citizenry, creating one class that shares the Board’s own evident religious beliefs and another (far smaller) class that does not. And that the practice also alters a dissenting citizen’s relationship with her government, making her religious difference salient when she seeks only to engage her elected representatives as would any other citizen.”
Kagan writes that the Court majority opinion reflected “two kinds of blindness.” First, it missed the difference between traditional legislative prayer and the setting of the town council, a difference she described as a “chasm,” and the fact that the prayers in Greece are mostly addressed to the public rather than lawmakers. She said the majority “changes the subject” rather than addressing the sectarian content of the prayers delivered in Greece, such as those invoking “the saving sacrifice of Jesus Christ on the cross” or “the plan of redemption that is fulfilled in Jesus Christ.” These are not, as she says, the recitation of “God save the United States and this honorable Court” invoked at the beginning of Supreme Court sessions.
Kagan cites George Washington’s well-known letter to the Newport Hebrew Congregation, in which he assured members of that congregation that the First Amendment does not simply tolerate people of minority faiths, rather all possess the same “immunities of citizenship.”
For me, that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I therefore respectfully dissent from the Court’s decision.
Breyer also joined Kagan’s dissent, as did Justices Ginsburg and Sotomayor. The case is Town of Greece v. Galloway.
Among the many court cases challenging contraception requirements under the Affordable Care Act, the case involving the Little Sisters of the Poor has been, and continues to be, a strange one. The latest wrinkle came on Friday in what SCOTUSblog’s Lyle Denniston calls a “partial win” for the order of nuns.
The Little Sisters, represented by the Becket Fund for Religious Liberty, appealed to the Supreme Court to prevent the group from having to sign a form documenting its religious objection to providing contraception coverage while its broader challenge to the law moves through the courts. The Tenth Circuit had rejected a similar request.
Under the Obama administration’s accommodation for religious groups, that form would exempt the organization from providing or paying for contraception coverage, and that responsibility would pass to the group’s insurer. In a brief to the Supreme Court, the Solicitor General’s office said that by Becket’s reasoning, a Quaker couldn’t be required to attest to his religious objections before being absolved of military obligations. But Becket insisted that the form acted as a “permission slip” that would trigger contraception coverage, and that would make the nuns complicit.
What makes this argument even stranger is the fact that the Little Sisters’ insurer is classified as a “church plan,” which is exempt from enforcement of the ACA requirement. So whether or not the Little Sisters signed the form, their lay employees would still not have access to coverage.
On Friday, the Supreme Court granted the Little Sisters’ request for an injunction, with a proviso. The group did not have to sign the government’s religious objection form, but it did have to notify the Department of Health and Human Services of its religious objections by letter. The Becket Fund declared victory and announced itself “delighted” by the Court’s compromise.
So, to recap: requiring a religious organization to sign a form opting out of providing contraception coverage is religious tyranny, but requiring a religious organization to send a letter to HHS stating its objections to providing contraception coverage is a victory for religious freedom.
Just wait until the Supreme Court hears the more far-reaching Hobby Lobby case, in which Becket and its client seek to establish the principle that for-profit companies can opt out of laws protecting their employees if those laws conflict with the religious beliefs of the corporation’s owners.
January 16 is Religious Freedom Day, which commemorates the Virginia General Assembly’s approval of Thomas Jefferson’s historic Virginia Statute for Religious Freedom, a precursor to the religious liberty protections in the First Amendment to the U.S. Constitution.
In this year’s Religious Freedom Day proclamation, President Barack Obama writes,
Today, America embraces people of all faiths and of no faith. We are Christians and Jews, Muslims and Hindus, Buddhists and Sikhs, atheists and agnostics. Our religious diversity enriches our cultural fabric and reminds us that what binds us as one is not the tenets of our faiths, the colors of our skin, or the origins of our names. What makes us American is our adherence to shared ideals -- freedom, equality, justice, and our right as a people to set our own course.
America proudly stands with people of every nation who seek to think, believe, and practice their faiths as they choose. In the years to come, my Administration will remain committed to promoting religious freedom, both at home and across the globe. We urge every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future.
As we observe this day, let us celebrate America's legacy of religious liberty, embrace diversity in our own communities, and resolve once more to advance religious freedom in our time.
Melissa Rogers, a widely respected advocate for religious liberty who currently serves as special assistant to the president and executive director of the White House Office of Faith-based and Neighborhood Partnerships, also published a reflection on Religious Freedom Day.
Rogers celebrates the Religious Land Use and Institutionalized Persons Act, which passed Congress by unanimous consent in 2000 with backing from a politically and religiously diverse coalition. RLUIPA (pronounced R-loopa) has helped Christians, Jews, Muslims, Sikhs, people who practice Native American traditional religions and others protect their ability to meet and worship, and has helped people in prisons, jails, mental institutions, and state-run nursing homes preserve their religious freedom.
The values embodied in RLUIPA are universal ideals. Department of Justice attorneys have provided technical assistance on issues involving construction of places of worship to government officials in Spain, Indonesia, Bosnia-Herzegovina, and other countries wrestling with these same issues. In 2012, the Islamic Center of Murfreesboro, Tennessee won the right to move into its new mosque with the help of a RLUIPA suit brought by the Department of Justice. On the day of the court decision, the mosque’s Imam, Sheikh Ossama Bahloul, remarked that America’s dedication to religious freedom can serve as a model for others around the world, and added: “I think this is an opportunity for us all to celebrate the freedom and liberty that, in fact, exist in America and to teach our young people to believe even more in the U.S. Constitution.”
People For the American Way and PFAW Foundation celebrate religious freedom by working to uphold the First Amendment’s twin pillars of religious liberty: the Establishment Clause, which mandates the separation of church and state and prevents government from playing religious favorites, and the Free Exercise Clause, which protects individuals’ right to worship and exercise their faith free from government interference.
Religious liberty is central to the American Way, but it has also become a rallying cry for Religious Right leaders and their political allies, who all too often portray criticism as persecution, and policy disagreement as tyranny. That poisons our political climate.
Like other constitutional guarantees, religious liberty is fundamental but not absolute, particularly when it comes into tension with other principles like equality under the law or protecting public health. Advocates for religious freedom frequently disagree about how to apply religious liberty principles in specific cases, and where courts should draw the lines in cases balancing competing interests. These are complex and often very contentious issues. People For the American Way Foundation’s “12 Rules for Mixing Religion and Politics” set out principles for bringing religion and religious values into the public arena in ways that are constructive rather than divisive.
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.
A symposium on the 20th anniversary of the Religious Freedom Restoration Act hosted by First Amendment advocate Charles Haynes at the Newseum in Washington D.C. on November 6 demonstrated one premise of People For the American Way Foundation’s 12 Rules for Mixing Religion and Politics – that people who support a core constitutional principle like religious liberty can disagree with how that principle should be applied. In recent years, religious conservatives have increasingly charged that those who disagree with them on this line-drawing are tyrannical enemies of faith and freedom. The RFRA anniversary was a reminder that, as Bill Moyers wrote in his introduction to the 12 Rules, “We can simultaneously share a strong commitment to religious liberty, while disagreeing over the application of that principle in a given circumstance.”
In fact, an almost unimaginably broad coalition worked to pass RFRA in 1993, including People For the American Way and the ACLU, the National Association of Evangelicals and Concerned Women for America, and a huge array of religious and civil rights groups. Also unimaginable in our political climate: RFRA passed the Senate 97-3 and the House unanimously by voice vote. But divisions within the coalition developed just a few years later and persist today.
RFRA was a response to the Supreme Court’s 1990 Smith decision in a case involving Native Americans who were denied unemployment benefits because they had violated state anti-drug laws through the sacramental use of peyote. The Court ruled that as long as the law in question was applied generally and not designed to target a particular religious practice, there was no real recourse for people whose exercise of religion was restricted. The decision toppled long-standing precedent and left advocates for religious liberty deeply concerned that religious minorities would suffer if there were no legal requirement for reasonable accommodation of their beliefs.
RFRA states that if a law places a substantial burden on a person’s exercise of religion, the government must demonstrate that the law is serving a compelling interest and does so in the least restrictive way. In 1997, the Supreme Court upheld RFRA as it applies to the federal government, but not to the states. Efforts to re-mobilize the RFRA coalition to pass a new law failed when civil rights advocates feared that a broad standard could be used to undermine state civil rights laws such as laws against discrimination based on sexual orientation.
Oliver Thomas, a co-chair of the original RFRA coalition, said it is not surprising that RFRA gets less popular as it gets older and its “majestic generalities” get applied in contentious cases. Organizations that were allies in passing RFRA are now on both sides of political and legal disagreements about how its standards should apply in a variety of situations, including the mandate under the Affordable Care Act that insurance plans include contraception, the proposed Employment Non Discrimination Act that just passed the Senate, and the advance of marriage equality. Even among ENDA’s backers there are disagreements about the nature and extent of religious exemptions in the bill.
The first part of the anniversary symposium, which included PFAW Foundation Board Member Rabbi David Saperstein, presented an insider view of RFRA’s history: the development of the RFRA coalition, the politics of writing the law and building congressional support. One historical tidbit: coalition members had to work hard to overcome objections raised by the U.S. Conference of Catholic Bishops, who feared the law might somehow give a weapon to their opponents on abortion rights issues. Rep. Henry Hyde told coalition members that the bill would not move until they addressed the bishops’ concerns.
That history is particularly interesting given that conservative Catholics are now using RFRA to challenge the contraception mandate. A discussion of the contraception mandate in the Affordable Care Act featured Lori Windham from the Becket Fund for Religious Liberty, which represents a number of companies, business owners, and organizations challenging the mandate, and Dan Mach of the ACLU Program on Freedom of Religion and Belief, which argues that the contraception requirement does not substantially burden the religious freedom of business owners, and that the Obama administration’s accommodation for religious organizations is more than sufficient. Mach noted that while religious liberty is fundamental, it is not absolute, and should not be used to infringe the rights of others.
Another issue discussed by the panelists was whether RFRA protects for-profit corporations – not the owners, but the corporation itself as an entity. Some of the panelists discussing RFRA’s history agreed that conversation about violations of religious liberty were focused on individual people, not for-profit corporations, though some said the debate on RFRA and related laws assumed that companies would be covered. The Becket Fund’s Windham made a case for including such corporations with RFRA’s protections, saying constitutional rights shouldn’t depend on your tax status. The Constitutional Accountability Center has argued otherwise.
Doug Laycock, a University of Virginia law professor, is among the most prominent legal scholars on religious liberty. He finds himself positioned on differing sides in various culture war battles. Just a day before the anniversary symposium, Laycock argued before the Supreme Court, representing people who are challenging the practice of sectarian prayer at city council meetings in the Town of Greece case. In that case he stood with advocates of strong church-state separation. On other issues, such as whether a business owner should have the right not to provide services related to a same-sex wedding, he stands with religious conservatives who are pushing for broad religious exemptions to anti-discrimination laws.
Laycock dismissed right-wing charges that the Obama administration is waging a war on religious liberty. He said the administration has gone to “remarkable lengths” to accommodate religious organizations on the contraception mandate and said he doubts that opponents will be able to convince judges that the current rule creates a substantial burden under RFRA. Obviously, the Becket Fund and other Religious Right legal groups and their clients strongly disagree. Later this month the Supreme Court will consider whether to accept for consideration four cases involving for-profit companies challenging the mandate. Cases involving non-profits have not advanced as far.
A panel on other current controversies placed them in the context of increasing religious pluralism in America, including the rapid growth of “nones” – people who claim to religious affiliation. One panelist noted that religious and civil rights groups can still find common ground in opposition to laws targeting religious minorities, as many did in opposition to Oklahoma’s anti-Sharia law, which was found unconstitutional earlier this year. But it should be noted that some Religious Right groups have in fact backed such laws, and some opposed the building of the Islamic community center in New York that was deceptively dubbed the “Ground Zero Mosque.”
Laycock worries that culture war battles are weakening Americans’ commitment to religious liberty. He faults conservative religious groups for continuing to fight legal marriage equality for same-sex couples. But he also believes LGBT rights advocates should be more willing to accept broad religious exemptions. Laycock said that conservatives’ dug-in resistance to equality diminishes the incentives for gay-rights activists to accommodate them. The challenge, as he sees it: on issues of sexual morality, one side views as a grave evil what the other side views as a fundamental right. In that climate, tens of millions of Americans believe that “religious liberty” empowers their enemies, and neither side is willing to embrace what Laycock considers “live and let live” solutions.
Marc Stern of the American Jewish Committee agreed with Laycock’s concerns about a winner-take-all approach to religious freedom issues, which he said reflects the broader political climate. But the courts will continue to undertake the balancing act required by the Constitution and by RFRA when constitutional principles come into tension. And, he said, once the courts work through issues regarding contraception and LGBT equality, we will all still need to grapple more with larger cultural and legal questions, such as those involving the growing number of nonbelievers who are reshaping America’s religious landscape.
The anniversary symposium, “Restored or Endangered? The State of Religious Freedom,” was sponsored by The Baptist Joint Committee for Religious Liberty, Christian Legal Society, American Jewish Committee, Religious Action Center of Reform Judaism, Union of Orthodox Jewish Congregations, Becket Fund for Religious Liberty and Religious Freedom Center of the Newseum Institute.