Religious Liberty

Dangers of Supreme Court Prayer Ruling Quickly Become Clear

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. 

PFAW Foundation

Supreme Court Upholds Sectarian Prayer at Official Meetings

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.”

Writes Kagan:

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.

PFAW Foundation

Safe Schools Letter Campaign Wraps Another Week, Twelve Groups Have Gone on Record

The letter-a-day campaign for safe schools that PFAW is leading just finished another week, and now twelve groups have gone on record with Congress in support of safe schools legislation. Together, we are sending loud and clear the message that all students deserve far better than what they're getting when it comes to bullying and harassment in schools.

Defining Religious Liberty: Little Sisters' Little Victory

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.


PFAW Foundation

Celebrating Religious Freedom

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. 


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.


Religious Freedom Anniversary Highlights Divisions Among Current and Former Allies

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.  

PFAW Foundation

New DC Circuit Decision Shows Why GOP Wants to Block New Judges

With starkly political language, the DC Circuit rules that the ACA's contraception coverage provision violates business owners' religious liberty.

Hypocrisy, McCarthyism & “Christian Persecution”

It seems like with every election, congressional hearing or large gathering of its activists, the Right reaches new lows. Here are some updates on what we’re up against right now.

Rewarding Hypocrisy -- Sanford and Cruz

This week, former South Carolina Governor Mark Sanford staged a political comeback and won a special election to reclaim the U.S. House seat he once occupied. Sanford had left office mired in scandal about his extramarital affair and ran a campaign centered on his own humility and learned compassion -- although, apparently his experience did nothing to dissuade him from his moralizing anti-choice and anti-gay positions. I pointed out in a piece on the Huffington Post yesterday that Sanford trumpeted his new personal understanding of "human grace as a reflection of God's grace," but his ideas of grace, choice and personal freedom as they apply to his own story don’t seem to be pushing him in the direction of supporting those things for same-sex couples, women, religious minorities or really anyone who is not just like him.

Sanford’s just the tip of the iceberg.

This past weekend NRA convention speakers from Glenn Beck and Rick Santorum to Sarah Palin and NRA president Wayne LaPierre attacked “the Left,” the Obama administration, the media and, basically, their straw man version of The (uber-liberal) Establishment for using fear tactics to scare Americans into supporting common sense gun reforms like background checks… while in the same breath stoking paranoia about every manner of “big government” tyranny, like the forced disarmament of America’s law abiding gun owners.  

Another NRA convention speaker, Sen. Ted Cruz (R-TX) is being discussed in right-wing circles (and by Cruz himself) as potential presidential candidate in 2016. Cruz is a Tea Party super star who is making waves by challenging the traditional role of freshmen U.S. senators and recently gained notoriety for leading the filibuster of the background check requirement for gun purchases (the one 90% of Americans support) and then insulting his fellow Republican senators at a Tea Party event. But Sen. Cruz was born in Canada. Where are all the Tea Party “Birthers” who claimed that President Obama was born in Kenya and therefore he didn’t qualify as a “natural born citizen,” making him ineligible to run for president, even if his mother was an American citizen??

Whether it’s based on race, politics or ideology, the hypocrisy here is palpable … as it was when Cruz bragged to the NRA about vowing to filibuster any gun safety reform, no matter how common-sense or popular, but in the same speech, tore into Senate Majority Leader Harry Reid for requiring a 60 vote threshold to advance one of his preferred “pro-gun” bills, which incidentally had less support in the Senate than background checks.

It seems that it’s not so much a good redemption story the Right loves as it is blatant hypocrisy that gets rewarded with support and popularity.


It must be political witch hunt season because Republicans in Congress – fueled by their allies in the right-wing media – are embarking on some serious fishing expeditions in attempts to smear the president, his nominee for Labor Secretary Tom Perez and former Secretary of State Hillary Clinton.

Rep. Darrell Issa (R-CA), chair of the House Oversight and Government Reform Committee channels Sen. Joe McCarthy perhaps more than any other sitting member of Congress in his overzealous twisting of facts and events to “support” his hyperbolic allegations like President Obama’s is “the most corrupt government in history” and Hillary Clinton and her inner circle staged a vast “cover up” surrounding the embassy attack in Benghazi. Issa, who himself is no stranger to ethical questions (again with the hypocrisy -- they can’t help themselves), along with his allies, who include most congressional Republicans, the Religious Right and virtually the entire conservative movement, are clearly being motivated by their expectations that former Sec. of State Clinton will be a formidable candidate for president in 2016, so they are trying to tar her in advance.    

Issa and his House cohorts have been involved in the attacks on Tom Perez as well, although the real obstruction is taking place in Senate, where Perez’s confirmation vote has been delayed again by Republicans on the Health, Education, Labor & Pensions (HELP) Committee. While obstructing an eminently well qualified Latino nominee seems like a funny way to demonstrate the GOP’s “rebranding” and appeal to Latino voters, the attacks on Tom Perez have truly been as vicious as they are baseless. Rep. Steve King (R-IA) alluded to Perez being “a dishonorable man,” and Rep. Jim Jordan (R-OH) contorted claims about an incident involving the city of St. Paul, MN to assert that Perez wanted to “hurt poor people” simply because he was in a position of power from which he could do so.

This week, PFAW delivered 50,000 petition signatures to the Senate HELP Committee urging an end to the obstruction and swift action to confirm Tom Perez, and we’ll continue to keep the pressure on.

Religious Right’s Persecution Fantasy

Claim after claim after claim of “persecution,” used as examples of a “war on Christians” by Religious Right activists, talk show hosts and politicians, gets thoroughly debunked. But even as these examples are firmly established as myths, right-wing leaders, and even lazy mainstream journalists, continue to cite them in their speeches and reporting. PFAW’s Right Wing Watch released an In Focus report in the first weeks of the Obama administration in 2009 about the Right’s use of a “big lie” strategy about a war on Christians to stoke the base’s false fears of religious persecution. We are seeing every day in our Right Wing tracking that the playbook we identified remains in constant use.

Corporate Court(s)

A new study by the Constitutional Accountability Center details the remarkable success corporate special interests like the Chamber of Commerce have had before the current Supreme Court. Certainly as, if not even more, notable, another study published in The Minnesota Law Review ranked all 36 Supreme Court justices of the last 65 years based on their pro-corporate bent. While all five of the current Court’s conservative justices made the top 10, President George W. Bush’s nominees and the two most recent conservative additions to the Court, Chief Justice Roberts and Justice Alito, were at the very top of the list.

Meanwhile, a separate study from the nonpartisan Congressional Research Service confirms what we’ve been pointing out for years -- that President Obama’s judicial nominees are being treated exceptionally poorly by Senate Republicans. Emblematic of the obstruction of President Obama’s nominees has been the situation with respect to the DC Circuit Court of Appeals, often called the nation’s second most powerful court. Republicans are fighting tooth and nail to preserve the DC Circuit’s rightward tilt even at the cost of maintaining vacancies that severely hinder the Court’s ability to do its job.

PFAW will continue to call attention to and fight the GOP’s unprecedented judicial obstruction in the DC Circuit and the entire federal judiciary. We expect several confirmation battles on the horizon, with new nominations expected to be announced by the White House in coming weeks, and we’ll be employing various strategies to make sure senators are feeling the heat in their own states over the GOP’s unconscionable obstruction.


North Carolina Drops Official Religion Bill

After vocal opposition from People For the American Way and others, Speaker Thom Tillis of the North Carolina House announced yesterday that a resolution stating that North Carolina has the power to declare an official religion would not be brought to a vote.  In effect, this means that the resolution has been dropped. 

The bill claimed that the Establishment Clause of the Constitution’s First Amendment does not apply to states.  But as People For the American Way President Michael Keegan noted in a statement on Wednesday,

“There’s no question that any attempt to establish an official state religion is blatantly unconstitutional. That’s true whether it’s North Carolina or the federal government.”

The proposal highlighted the extremes that Tea Party Republican lawmakers are willing to go to in order to push their dangerous ideology – even when it means ignoring core principles on which our nation was founded, such as religious liberty and the separation of church and state.  

UPDATE (4/8/13): North Carolina Representative Harry Warren, one of the sponsors of the resolution, has now publicly stated that he “regret[s] any embarrassment or concern that it has caused the citizens of Rowan County and North Carolina,” calling the resolution “poorly written.”  Warren’s explanation is, however, still problematic.  He says he wanted a resolution that county officials have the right, despite the Establishment Clause, to open their proceedings with specifically Christian prayers.  That, of course, flies against the Constitution. 



Shredding the Constitution in North Carolina

North Carolina legislators introduce a resolution declaring that the state can establish a religion and that federal courts can't declare laws unconstitutional.

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.


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.”


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.

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

The Challenge of “Both-And” Policymaking

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 Americaand 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.


When Everything Is Partisan, Just Do What's Right

I suppose I shouldn't have been surprised when Republicans started complaining that President Obama's second inaugural address was too "partisan" and lacked "outreach" across the aisle. But who was left out? What did they find "partisan"? The acknowledgement of climate science? The idea that women should receive equal pay for equal work? The nod to civil rights struggles of our past and present? The hope that no American will have to wait in hours-long lines to vote? The defense of the existence of a social safety net? The determination to offer support to the victims of a historic storm and to find real answers to the epidemic of mass shootings? In the not-too-distant past, none of these would have raised eyebrows except on the very, very far right. But I guess that's the point: what was once the radical fringe is now in control of the Grand Old Party.

In many ways, Monday's inauguration ceremony was a Tea Party Republican's nightmare-come-true. The openly gay poet. The Spanish sprinkled into the benediction. The one-two-three punch of "Seneca Falls to Selma to Stonewall." It was the embodiment of all that the far right has tried to wall itself off from as the country begins to include more and more of the real America in its democracy.

What would have pleased this faction, short of winning the presidential election? I imagine they would have preferred a paean to the America of their imaginations -- where the founders were flawless and prescient about the right to bear assault weapons and the Constitution was delivered, amendments included, directly from God; where there are no gay people or only silent ones, where the world is not getting warmer; where there have been no struggles in the process of forging a more perfect union. This, of course, would have been its very own kind of political statement -- and one that was just rejected by the majority of American voters.

If embracing America as it is rather than as a shimmery vision of what it never was constitutes partisanship, and if it turns off people who cling to that dishonest vision, let's have more of it.

This post originally appeared at the Huffington Post.