Becket Fund

Becket Fund Pretends It's Not Fighting The Culture Wars

Politico is up with a profile of the Becket Fund, one of the Religious Right legal groups that has pushed, via Hobby Lobby and related cases, to expand the definition of “religious liberty” to allow corporations and individuals as well as religious institutions to opt out of laws they say violate their religious beliefs.

The article by Amelia Thomson-DeVeaux quotes Stanford Law School professor Michael McConnell saying nice things about Becket, but it doesn’t mention that Becket steered $1.6 million to Stanford and McConnell for a religious liberty law clinic that opened at the school last year.

In Politico, McConnell attributes to Becket the idea that religious freedom “is not – in most contexts – a culture war issue.” At a forum on religious liberty at the Newseum last year, Becket’s Mark Rienzi also suggested that religious liberty is not a culture war issue.

In reality, redefining “religious liberty” has become the central culture war issue and the primary legal and public relations strategy chosen by conservative evangelicals and their allies in the Catholic hierarchy to resist the advance of LGBT equality and restrict women’s access to reproductive care. Becket is at the center of this strategy. A corollary strategy is portraying Christians in America as the victims of religious persecution; Becket lawyers appear in Rick Santorum’s latest movie, “One Generation Away: The Erosion of Religious Liberty.”

While it is true that support for religious freedom crosses political and religious lines, and it is admirable that Becket, unlike some other Religious Right legal groups, defends the freedom of religious minorities as well as conservative Christians, it is hard to accept with a straight face the idea that Becket’s lawyers are not culture warriors.

Let’s review some of Becket’s culture-war credentials:

  • In addition to Robert George, the intellectual force behind the Manhattan Declaration and the Catholic bishops’ “religious liberty” strategy, Becket’s board includes culture warriors like the Family Research Council’s Ken Blackwell and right-wing mega-funder Sean Fieler.
  • Earlier this year, Becket celebrated the Supreme Court’s ruling in Town of Greece v. Galloway, in which the Court upheld sectarian prayer at official public meetings and narrowly defined what would amount to unconstitutional religious coercion of people attending those meetings. Becket signaled that it hoped the decision would lead to the further dismantling of court rulings that uphold church-state separation.
  • Last year a Becket blog post about a legal victory for a Colorado voucher program that diverts public education funds to religious schools was headlined “Needy Kids 1, Anti-Catholic Bigots 0.”
  • In the fall of 2012, Becket co-sponsored an event for the Manhattan Declaration — itself a call to the culture-war barricades. According to an admiring report by Mark Tooley of the Institute on Religion & Democracy, Becket President William Mumma “noted that in today’s culture wars ‘religion is not an accidental victim, it is the target’ for radical secularists. ‘When government tries to murder religion it may murder religious liberty but not religion,’ he promised, as faith will survive amid persecution.”
  • Becket’s executive director Kristina Arriaga joined hard-core culture warriors in supporting the Pray and A.C.T. group created by dominionist Lou Engle in advance of the 2010 elections.
  • In 2008 Becket ran a full-page ad in the New York Times charging that anti-Prop 8 protesters were “thugs” engaged in a “religious war” of violence and intimidation against the Mormon church; founder Kevin “Seamus” Hasson responded to criticism with a comparison of “radical secularist” Prop 8 protestors to radical Islamist terrorists.

Winners of Becket’s Canterbury Medal over the past decade include Robert George; ultraconservative Philadelphia Archbishop Charles Chaput, who has waged what a local columnist called a “war on Obama” over the HHS mandate; Eric Mataxas, the author whose 2012 prayer breakfast speech delighted right-wing activists with its thinly veiled attacks on President Obama’s faith; and Mormon Apostle Dallin H. Oaks, a strong defender of the LDS Church’s anti-equality efforts.

One more quibble with the Politico story: its headline – “God’s Rottweilers” – does give a sense of the group’s intensity, but it also implies that Becket is working for God. Media coverage all too often portrays culture war issues as a struggle between religious people and “radical secularists” when in fact there are also many religious individuals and organizations actively opposed to the Religious Right’s agendas on LGBT equality, women’s access to reproductive care, and the relationship between church and state.

Rick Santorum Presents Latest 'Religious Persecution' Movie

Two current Religious Right fixations — the “persecution” of American Christians and the need for conservatives to do more to influence the pop culture — have come together in movies like “Persecuted” and “We the People—Under Attack.” The latest entry, “One Generation Away: The Erosion of Religious Liberty,” was screened by Rick Santorum at the Heritage Foundation on Monday night.

Santorum said the movie will be released in September. His EchoLight Cinemas is trying to create an alternative to Hollywood distribution channels by building a network of thousands of tech-equipped churches who will sell tickets for "One Generation Away" and other movies. He says the long-term strategy is to bring more people into churches and put the church back at the center of the culture.

"One Generation Away" is described as a documentary, but it’s really a preaching-to-the-choir call to arms for conservative Christians and pastors to get more involved in culture war battles while they still have the freedom to do so. Among the film’s producers are Donald and Tim Wildmon from the American Family Association, which Santorum said is packaging a shorter version of the movie into more of an activist tool.

The title comes from Ronald Reagan – specifically from a speech to the Phoenix Chamber of Commerce in 1961, a time in which Reagan was working with conservatives to rally opposition to Medicare – “socialized medicine”:

Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.

The thrust of "One Generation Away" is that religious freedom in the United States is disappearing fast, and if the church doesn’t fight for it now, it will soon be gone forever. Before running the film on Monday, Santorum quoted Cardinal Francis George, who said during the debate about insurance coverage of contraception, “I expect to die in my bed. I expect my successor to die in prison. I expect his successor to be a martyr.” That’s just the kind of hyperbolic “religious persecution” rhetoric we have come to expect from Religious Right leaders and their allies in the Catholic hierarchy.

At one point toward the end of the movie, it seems as if the filmmakers might be striking a more reasonable tone, with a couple of speakers saying that Christians should stand up for the rights of people of different faiths — even though the AFA’s chief spokesman opposes First Amendment protections for non-Christians— and others actually acknowledging that it is problematic for American Christians to be complaining of “religious persecution” over policy disputes when Christians and others are facing horrific, deadly persecution in many other parts of the world.

But that caution is quickly abandoned as the movie makes a direct comparison of the status of the Christian church in America with the church in Germany as the Nazis came to power. Dietrich Bonhoeffer, a pastor who tried to mobilize German Christians to resist Nazi tyranny and was executed by the regime, is held up as the model that American Christians need to be willing to follow.

Eric Metaxas, a Bonhoeffer biographer who became a Religious Right folk hero when he questioned President Obama’s faith at a National Prayer Breakfast attended by the president, warned that if the church doesn’t link arms to fight, all will be lost. “The good news,” he said, “is that the American church is slightly more attuned to the rumbling heard in the distance than the German church was in the 30s. The bad news is, only slightly, right?”

The movie cuts to Mike Huckabee saying that Bonhoeffer could have saved his life if he had been willing to soften his faith, but that instead he resisted and rebuked the Nazi regime. And then we’re back to Metaxas to complete the Nazi analogy:

 “The parallel today is simply that. You have a government, a state, which is getting larger and larger and more and more powerful, and is beginning to push against the church. There’s a window of opportunity where we can fight. If we don’t wake up and fight before then, we won’t be able to fight. That’s just what happened in Germany. And that’s the urgency we have in America now. And people that’s incendiary, or I’m being hyperbolic. I’m sorry, I wish, I wish, I wish I were. I’m not.”

Filmmakers said at the screening that they had conducted 75 interviews for the movie, and it sure feels like it.  It includes names that will be well-known to RWW readers, like Mike Huckabee, Tony Perkins, Harry Jackson, Tim Wildmon, Alveda King, Robert George, Russell Moore of the Southern Baptist Convention, Eric Teetsel of the Manhattan Declaration, and Ryan Anderson and Jennifer Marshall of the Heritage Foundation.

Also appearing are Rep. Doug Collins; Rick Perry backer Robert Jeffress; Matthew Franck of the Witherspoon Institute, which sponsored the infamous and discredited Regnerus “family structures” study; Stephen McDowell of the dominionist Providence Foundation; Gregory Thornbury of Kings College; lawyers from the Alliance Defense Fund, the Beckett Fund, the Freedom of Conscience Defense Fund; and a number of pastors.

The film also includes interviews with some opponents of the Religious Right, including Barry Lynn of Americans United for Separation of Church and State, Princeton’s Peter Singer, and Dan Barker of the Freedom From Religion Foundation. Santorum told the audience at Heritage that he wishes he had even more of his opponents included in the film because “they scare the hell out of me” and would help motivate the right-wing base.

In order to keep the movie from being one brutally long succession of talking heads, the filmmakers resort to a tactic of constantly shifting scenes, a couple of seconds at a time, in a way that feels like they got a volume discount on stock images of Americana: boats on the water, kids playing softball, families walking together. There are also odd random fillers, like close-ups of the pattern on a couch in the room in which a speaker is sitting. The endless, repetitive succession of images actually makes the film feel even longer than it actually is. (Zack Ford at ThinkProgress had a similar reaction to this technique.)

The meat of the film, or the “red meat,” mixes the personal stories of people being  victimized by intolerant secularists and/or gay activists with miniature David Bartonesque lectures on the Christian roots of America’s founding; the fact that the phrase “separation of church and state” never appears in the U.S. Constitution; the notion that the American government is trying to replace “freedom of religion” with “freedom of worship” and require any expression of faith to take place behind church walls; and the disgracefulness of making any analogies between the civil rights movement and the LGBT equality movement. The 1947 Supreme Court decision in which Jefferson’s “separation of church and state” phrase was invoked by the Court and “changed everything” is portrayed as nothing more than a reflection of Justice Hugo Black’s hatred of Catholics.

Featured “persecution” stories include:

  • a long advertisement for Hobby Lobby and its owners, the Green family, which recently won its legal battle against the contraception mandate;
  • a baker and florist who ran afoul of their state’s anti-discrimination laws when they refused to provide services for a same-sex couple getting married;
  • cheerleaders at a public high school in Texas who were challenged by the Freedom From Religion Foundation for creating football game banners featuring Christian scriptural quotes;  
  • Catholic Charities being “forced” to give up adoption services rather than place children with same-sex couples;
  • an ACLU challenge to a large cross at the Mt. Soledad war memorial; and
  • the supposed frontal attack on the religious freedom of military chaplains as a result of allowing LGBT members of the armed forces to serve openly. On this issue, Tony Perkins declares, “The military is being used as a vanguard of radical social policy. And in order for that policy to permeate and to take root, you’ve got to take out the religious opposition.”

In spite of the parade of horrors, the movie tries to end on an upbeat note, saying that the early Christian church expanded while it was being suppressed, and that it will only take “one spark of revival” to change the nation.  A familiar theme at Religious Right conferences is that blame for America’s decline rests with churches that don’t speak up and pastors who don’t preach or lead aggressively enough. One Generation Away ends on this point, telling Christian pastors it is their responsibility to wake up and challenge their congregants to live their faith “uncompromisingly.”

During the Q&A after the screening, Santorum said the fact that Hobby Lobby was a 5-4 decision demonstrated the importance of the 2016 election. “Part of me almost wishes we’d lost,” says Santorum, because that would have made the threat clearer to conservative activists. “We are one judge away,” he said, adding that “if we get a Democratic president, our five, or four-and-a-half, justices are not going to hold out forever.”

“I just worry,” he said to the young people in the audience, “that the longer we delay, and America sleeps, and your generation is indoctrinated the way it is, the harder it will be to come back.”

Religious Right Sees Opportunity In Supreme Court Prayer Ruling

Religious Right groups are celebrating yesterday’s Supreme Court ruling upholding sectarian prayer at official public meetings – like city council sessions – and narrowly defining what would amount to unconstitutional religious coercion of people attending. The case is Town of Greece v. Galloway.

Though divided on their reasoning, the Court’s five conservative Justices upheld a practice in which, month after month, year after year, town leaders reached out to Christians and Christians only to offer opening prayers at town meetings, prayers that were often quite sectarian in nature.  The very few exceptions were in response to this lawsuit.  Although town leaders said that members of other religions could lead the opening prayer if they asked to, they had hardly let that be widely known, and they continued to reach out only to Christians.

SCOTUSblog’s Lyle Denniston characterized the Court’s ruling as “[s]topping just short of abandoning a historic barrier to religion in government activity.” Conservative and religious groups hostile to church-state separation are gushing over the ruling and hope it is a sign of more to come.

The Becket Fund signaled that it hopes yesterday’s decision will just be the first step in further dismantling rulings upholding church-state separation.  From Deputy General Counsel Eric Rassbach:

“The Court’s landmark decision today echoes the wisdom of the Founders. Not only did the Court uphold the centuries-old practice of legislative prayer, it also started the work of bringing the entire law of church and state onto a firmer foundation in the words of the Constitution.”

David Corman, senior counsel for the Alliance Defending Freedom, which represented the Town of Greece:

“Opening public meetings with prayer is a cherished freedom that the authors of the Constitution themselves practiced,” he said. “Speech censors should have no power to silence volunteers who pray for their communities just as the Founders did.”

The American Family Association’s Bryan Fischer celebrated the ruling as a “monster win” and said it was proof that “we are fighting a winnable war,” because the “Supreme Court has ruled that you can have sectarian prayers, prayers in the name of Jesus Christ, to open any legislative session, any lawmaking body – a county commission can do it, a city council can do it, a state government can do it.”  

Fischer he went on at great length endorsing Justice Clarence Thomas’s position that the First Amendment does not limit states’ constitutional right to, for example, declare the Southern Baptist Church to be the official state church and force people to support the church with taxes.  Fischer, in fact, called Thomas “a stud on the issue of religious liberty.” (Fischer says he wouldn’t personally support coercive state establishment, but he supports Thomas’s constitutional analysis, and says it should be applied to interpret that the federal government has no right to tell public schools whether and how prayer is permitted.)  Fischer is delighted that the Supreme Court’s majority decision discussed the fact that the Continental Congress opened with “emphatically Christian” prayer.

Gordon Klingenschmitt:

Hallelujah!  Today YOU helped score a VICTORY at the U.S. Supreme Court, reaching the pinnacle of seven years of work and prayer with The Pray In Jesus Name Project.

The U.S. Supreme Court ruled 5-4 that it's OK for pastors to pray "in Jesus' name" at city council meetings. 

Family Research Council’s Tony Perkins:

"The court today has upheld our first and most fundamental freedom. The court has rejected the idea that as citizens we must check our faith at the entrance to the public square. We applaud the majority on the court for getting that right. This is an historic victory for all Americans of faith and for the common-sense reading of the Constitution itself. The Court's affirmation of the right of Americans to practice their faith in public life and the public square is a major win for the religious liberty we have always cherished.”

Ralph Reed of the Faith and Freedom Coalition called it a victory that would empower Religious Right activists to push elected officials to bring sectarian prayer into more official settings:

Reed also announced that, armed with today’s Supreme Court decision, Faith & Freedom Coalition would redouble its efforts to encourage opportunities for prayers offered at meetings by town boards, city councils, and county commissions nationwide.  The organization has in the past mobilized public support for local officials who have allowed such prayers at government meetings.

“Speech honoring God and invoking His blessing on our land should be welcomed, not treated with hostility,” said Reed.  “With today’s decision, the government officials that faith-based voters help to elect can provide a forum for such expressions without fear of being reversed by future courts.”

Concerned Women for America celebrated, saying the decision “lifts up the best in our country.” CWA President Penny Nance managed to slam what she said has been “a push to establish atheism as the official religion of our land” and claim that the Supreme Court’s ruling was a win for everyone, “even the staunchest atheists.”

Those who object to these practices do not seek to exercise their religious liberty; they merely feel hostile towards other people’s religious practices and seek to silence them. They seek to silence those with whom they disagree….

The Founders of this great nation benefited and relied heavily on prayer to seek the guidance they needed to establish the foundations of our nation. When the first Congress met on September 7, 1774, it began with an amazing prayer “in the name and through the merits of Jesus Christ, Thy Son and our Savior.” No religious oppression or favoritism followed from that practice, only the blessings of freedom and liberty, including the freedom of religious thought, belief, or even non-belief.

Everyone wins, including the staunchest atheists, when we allow the free exercise of religion or non-religion according to a person’s conscience.

Fox News pundit Todd Starnes, who specializes in promoting fictitious threats to religious freedom, declared that “the Obama administration has been waging a war against people of the Christian faith,” somehow neglecting to mention that the Obama administration had actually weighed in on the side of the Town of Greece and its overwhelmingly Christian prayers.  Starnes said it is “always a good day when the anti-Christian folks get smacked down by the Supreme Court” but said the fact that it was a 5-4 decision should be a “wake-up call” for Americans that elections matter.

Gary Bauer made the same point:

Here's the good news: The Supreme Court today upheld public prayers, even Christian prayers, at government meetings in 5-to-4 decision.

But that is the bad news too! The free exercise of religion depends on just one vote….

Now a win is a win. But don't miss the fact that this victory for religious liberty was won by the narrowest of margins. One more liberal appointment and the Supreme Court could easily ban prayers before town council meetings and legislative sessions. If that were to happen, our Pledge of Allegiance and the national motto would surely be next.

Your vote at the ballot box has a direct impact on our federal courts. Federal judges, including those on the Supreme Court, are appointed (by the president) and confirmed (by the Senate) by the men and women we elect to public office. 

 

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

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

Challenging the Right's Religious Liberty Claims

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 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.

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.

Challenging the Right on Religious Liberty

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

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

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

1. Define and publicize the campaign to redefine religious liberty

2. Organize a unified response

3. Counter misinformation

4. Reclaim the religious liberty frame

5. Develop academic responses

6. Leverage religious communities

7. Ongoing research and monitoring

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

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

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

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

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

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

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

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

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

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

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

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

PFAW

'Religious Liberty' Panelist: Compromise is of the Devil

The Family Research Council hosted a panel discussion Wednesday on religious liberty in America.  If you have paid any attention at all to the frantic warnings from FRC’s Tony Perkins that tyranny is on the march, you could have guessed what was coming.  The overall theme of the conversation was that the HHS mandate for insurance coverage of contraception is a dire threat to religious freedom in America.  So are the advance of marriage equality and laws against anti-gay discrimination – or the “sexual liberty agenda.”

The panel featured three lawyers: Adele Keim of the Becket Fund for Religious Liberty, Kellie Fiedorek of the Alliance Defending Freedom (formerly known as the Alliance Defense Fund) and Ken Klukowski of the Family Research Council.

Keim talked about Becket’s client Hobby Lobby, which is suing the Obama administration over the contraception mandate.  Or as Keim insisted on calling it, the contraception/abortifacient mandate. Keim argued that business owners are no less deserving of religious accommodation than churches or religiously affiliated nonprofits, saying “Americans do not lose their First Amendment rights when they go to work.” Of course by the standard she was invoking, many Americans could find their own rights and access to health care dictated by the religious beliefs of their employer.

The ADF’s Fiedorek focused on the “great peril” to religious liberty posed by the “agenda to expand sexual liberty and redefine marriage.”   She said in the conflict between sexual liberty and religious liberty, "people of faith" are "the ones being marginalized." She recounted a litany of such “persecution,” including now-familiar stories of a New Mexico photographer and a Colorado baker who were penalized under state anti-discrimination laws when they declined to serve same-sex couples celebrating commitment ceremonies.  Fiedorek compared cases in which businesses are required not to discriminate against gay couples to requiring an African American photographer to take pictures at a KKK event or a Jewish baker to create a cake decorated with a swastika.  She called it “particularly atrocious” that Catholic social service agencies were being required to abide by anti-discrimination ordinances – and were being “forced” to close.  She began and closed her presentation with quotes from the movie Chariots of Fire, ending with one that includes, “Don’t compromise. Compromise is a language of the devil.”

Klukowski talked about the role of religious freedom in the settling of America and the founding of the U.S.  And he recycled ridiculous religious right charges that the Obama administration believes not in freedom of religion but in the narrower “freedom of worship,” a notion that he said would be “profoundly disturbing” to the founding fathers.

The most interesting question from the audience focused on implications of the Bob Jones University case, and on whether the racialist Christian Identity movement could make the same religious liberty claims the lawyers were defending.  Why, the questioner asked, couldn’t the “conscience” rights the lawyers wanted for business owners not be claimed by a Christian Identity-affiliated business owner to deny doing business with African American people or interracial couples?

After a moment of awkward silence, Klukowski said that in the Bob Jones case, the Supreme Court had said the university could continue its racially discriminatory policies, but that its tax exemption was a benefit conferred by the government and could therefore be removed, especially in light of the post-civil war constitutional amendments addressing racial discrimination.  Klukowski did not directly address whether and how that principle could, would, or should apply to the current conversation about anti-gay discrimination.  He gave a confusing statement about what he said was the right of a business owner to throw someone out of their store for wearing a certain T-shirt or carrying a Bible.  The First Amendment, he says, allows people to be jerks in their private lives, but it was not clear whether he meant that the relationship between a business and its customers was “purely private” or falls into the category of public accommodation.

Circuit Court Rejects Attack on Contraception Coverage

The 10th Circuit rejects the argument that an employer's religious liberty is substantially burdened by the contraception coverage requirement.
PFAW Foundation
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