chevron-down Created with Sketch Beta.
January 01, 2013

Introduction: Religious Freedom At a Crossroads

by Barry W. Lynn

The 2012 election cycle began, uniquely, with four potential presidential nominees of one major political party informing the electorate that God had asked them to seek the position. (Technically, in the case of former Pennsylvania Senator Rick Santorum, it was his wife who got the word to pass on to him.) Because none of these four survived the grueling primary process or even ended up as the vice presidential nominee, it seems there was, at a minimum, a “failure to communicate.”

Of course, there’s nothing unconstitutional about a candidate for any office claiming providential approval for his or her race; nor is it a First Amendment violation for a voter to use religious, philosophical, or secular affiliations as the basis for determining which lever to pull at the polling place.

One can (although I don’t believe one should) vote for anyone from sheriff to president based on anything from religion to shoe size. I’d prefer people vote for those who support the commonly shared values of Americans found in the Constitution. These days, however, there seem to be many variants on what the Constitution actually protects, with everyone from cable television hosts to members of the Supreme Court claiming fidelity to a document filled with what some judges have called “majestic generalities.”

The actual religious beliefs of the presidential candidates were not the topic of much overt analysis or conversation. Mitt Romney, to his credit, publicly rebuked a PAC donor when The New York Times reported that he was about to embark on an advertising campaign tying the president to purported “radical” views of his former pastor, the Rev. Jeremiah Wright, a figure who played a significant role in the narrative of the 2008 election cycle. Similarly, to my knowledge, no Democrats have suggested that Romney’s membership in or contributions to the Church of Jesus Christ of Latter-day Saints “taints” his candidacy.

The more difficult question is the relationship of a candidate’s religious beliefs and values to laws or constitutional principles that might violate theological doctrine. Imperfect as it is, the most honest and direct way to address this question is to ask the candidate directly. Voters in 1960, fearful of the possible allegiance of presidential candidate and Catholic John F. Kennedy to the Vatican, were generally satisfied to hear him address a gathering of Southern Baptists and affirm his belief “in an America where the separation of church and state is absolute—where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote. . . .”

Romney attempted to make a similar speech in 2008 but did not make a clear enough demarcation of theological and constitutional policy making. As of this writing (late summer 2012), he hadn’t attempted another. Some will always question the validity of any answer that a candidate will give, but it is not an act of bigotry to inquire and expect a serious answer.

Voters who do not want any hint of sectarian motive in policy making will always have doubts about the influence of religious dogma on policy. Failing to get to the “soul” of the candidate, they will see only the “fruits” of deliberation: the political positions taken and the rationales offered for them.

There are plenty of constitutional interpretations and legal questions that recycle regularly in our political debates—2012 was no different. Interviews in religious magazines, debates, party and outside PAC advertising, and other information sources allow voters to hear about candidate positions on fundamental questions of First Amendment thinking. These include state and federal financial aid that ends up in religious schools through vouchers or tuition tax credits, displays of religious icons on public property, prayer and religious ablations in public schools, academic treatment of evolution and history, and whether, or under what circumstances, “partnerships” between governments and private “faith-based” charities are wise and constitutional.

The differences between major parties are never absolute, but there are consistent patterns. The 2012 Republican Party platform endorses school vouchers, including those that would subsidize religious schools, in spite of mounting evidence that the concept is fatally flawed and generates no appreciable academic improvement. This same platform supports the public display of religious symbols on government property. Although the Democratic platform is unlikely to even mention this latter topic, congressional votes on such subjects as selling property to groups that intend to erect religious icons or, recently, affirming support for “In God We Trust” as America’s national motto (as if there were a surge to erase it from its places of current usage) are likely to garner nearly unanimous bipartisan support.

Battleground imagery is employed by both sides. These issues are, as presidential candidate Pat Buchanan famously put it, part of “a culture war for the soul of America.” Supporters of the incumbent president spoke of a Republican “war on women” because of religious opposition to birth control, while the president’s opponents asserted that he has declared a “war on religion” (or at least on certain forms of Christianity).

Much of this rhetoric merely drafts religion into the cause of politics. Conservative religious groups have been vocal opponents of virtually every action taken by the Obama administration on any issue it deems “religious,” which is to say, almost any policy on any topic. The movement has excoriated Obama over his Supreme Court nominees, most of his policies on reproductive freedom, and his support of LGBTQ rights—even before his personal affirmation of marriage equality. Obama critics ignored the growth of public support to “faith-based” institutions and criticized him for suggesting, during the 2012 National Prayer Breakfast, that Jesus would approve of his budget.

In addition to Protestant efforts, there has been an extraordinary rise in lobbying by the U.S. Conference of Catholic Bishops over government support of religious missions and ministries, including a new understanding of the concept of “religious freedom.” In every election cycle, churches—left, right, and otherwise—sometimes engage in conduct that violates federal law regarding partisan support of candidates. Several notable incidents have occurred recently in which constitutionally protected speech has devolved into actual candidate “opposition” that is forbidden for all 501(c)(3) charities. In Peoria, Illinois, a Catholic bishop compared the president to Hitler and Stalin and stated that no serious Catholic could vote for him. In an even more offensive incident, a North Carolina pastor outlined his “final solution” for gay and lesbian Americans: All gay men should be put in one compound and all lesbians in another. After some period of food drops, the groups would die out because they “can’t reproduce.” Repugnant as this analysis is, he bluntly told parishioners that neither he nor they should be supporting some “baby killer and a homosexual lover” for president. It is on this latter point that he ran afoul of federal tax law.

On the other hand, staunch church-state separationists have often been discouraged by what they see as the Obama administration’s failure to act aggressively to preserve the “wall” or its undermining of the “wall” directly through positions taken in Supreme Court cases.

Perhaps the most significant example of this was the creation of a Council on Faith Based and Community Partnerships, which consisted of twenty-five primarily religious members including high-ranking officials of two major Roman Catholic groups, World Vision (which has received hundreds of millions of tax dollars), and a man once offered the presidency of Pat Robertson’s Christian Coalition. Some advocates of church-state separation were included, but the overall makeup was clearly designed so that recommendations on the faith-based initiative would not migrate too far in the direction of separation.

The group was told not to make any recommendation regarding the key question of whether recipients of government grants or contracts could maintain practices of hiring only persons in the federally subsidized programs who shared the group’s religious affiliation or beliefs. In other words, they could not ask, “Can a Baptist homeless shelter seeking a cook hang up a ‘No Jews or Atheists Need Apply’ sign?” As a candidate, Obama said he would not allow that. Once in office, his position softened. The way to deal with this thorny issue, the administration decided, was not to deal with it at all. At best, Attorney General Eric Holder claimed that discrimination issues were being addressed on a “case-by-case” basis but offered no examples of decisions made or any standards used by federal agencies. Case-by-case reviews without any standards are best characterized as “doing whatever the decision-maker feels like doing.”

Modest reform proposals on other matters emerged from the Council, including greater transparency in grant-making and maintaining a clearer distinction between religious and secular services at subsidized institutions, but a majority of the Council would not require removal of religious iconography or scripture in rooms providing government services (even where such action was “practicable”) nor insist that government funds be placed in a separate bank account for accounting purposes. Final regulations issued nearly two years later watered down the positive recommendations even more.

Pro-choice groups and representatives of the LGBTQ communities also found some deficiencies in the administration’s church-state approach. As one illustration, because religious groups claimed it would lead to promiscuity, Secretary of Health and Human Services Kathleen Sebelius rejected the conclusion of a Food and Drug Administration scientific panel that Plan B, the so-called morning-after contraceptive, should be made available over the counter to young women under age seventeen. Although conservatives applauded this decision, Sebelius did nothing substantively to mollify their harsh assessment of the administration. Enter the debate over regulations for the modest health insurance plan labeled “Obamacare.”

Although some Catholic groups ultimately supported the Affordable Care Act, there was considerable battle over how to avoid any mandated coverage of abortion. In its final form, the Act called for general coverage of contraception in health plans of companies with over fifty employees.

The first proposed regulation to cover the contraception mandate clearly exempted all pervasively sectarian institutions, like churches and seminaries, with moral objections to family planning. Most religiously affiliated entities, like Christian colleges or Catholic hospitals, had the coverage put on hold for a year to do more analysis of alternatives. A second set of draft regulations, however, caused a major furor in conservative circles by suggesting that third parties (perhaps a designated insurance provider unconnected to the institution’s own insurer) could provide any contraceptive coverage desired by a student or employee. Most reproductive justice advocates reluctantly agreed to this compromise.

It clearly seems like the right wing has now adopted a full “take no prisoners” approach. Even having a religious entity notify employees through an e-mail of ways to obtain coverage is seen as complicity in immorality and sin. It is alleged to be a kind of violation of a “corporate conscience.” In addition, the chief attorney for the Catholic bishops told USA Today that merely exempting religious institutions was itself insufficient. He claimed that, as a Catholic, if he decided to open a Taco Bell, he would want to reject coverage of any procedure he deemed immoral and be granted an exemption. Indeed, a Colorado federal court in July 2012 granted a temporary injunction against requiring an air-conditioning company owned by a Roman Catholic to cover birth control in its employee insurance plan.

While this issue (and others) seem destined to be resolved in the judicial system, many ordinary Americans are left standing dazed and confused at the intersection of religion and politics.

These days, most Supreme Court decisions are barely covered in the media. In recent years, the Court has cut back on the ability of taxpayers to raise First Amendment issues about public support of religion and has given broad latitude to religious entities to define their missions broadly and control the conduct of their employees, even when they use public funds to do so.

Whether through legislative initiatives or legal decisions, it is important to recognize that the principle of separation of church and state has served this nation well. Religious liberty is vitally important to the American people. But a misunderstood right can never be properly exercised. Religious liberty does not mean being handed state sanctions to force your theology on other people. It does not mean being given a free pass from laws you do not like. It does not mean your faith gets a little help from the state.

And for you politicians out there, a little reminder: You represent lots of people, from the deeply devout to the highly heretical. Strive to work for them all. Laboring to make one religion’s dogma the basis of laws that we all must follow is not the way to do that.


Barry W. Lynn is executive director of Americans United for Separation of Church and State in Washington, D.C.