This op-ed was originally published at The Huffington Post.
Over the last twenty years, 19 states have passed laws modeled on the federal Religious Freedom Restoration Act (RFRA), which was enacted in 1993 with broad bipartisan support. But just this year, almost the same number, 15, have seen such bills introduced, generating enormous controversy across the country, particularly in Indiana where Gov. Mike Pence signed the new state RFRA into law.
Why the huge uptick now? As one of those involved in the original drafting and passage of RFRA in 1993, I think it's a combination of the perceived dangers to the far right from the move towards LGBT marriage equality and the perceived opportunity created just last year by the 5-4 Supreme Court's rewriting of RFRA in Burwell v. Hobby Lobby.
Even before the Supreme Court agreed to decide the marriage equality issue, the far right has highlighted the supposed dangers to small businesses like bakers and florists who do not want to serve LGBT couples because of religious objections. Under RFRA as passed in 1993, and under the protection from the First Amendment's Free Exercise doctrine that it was meant to restore, RFRA wouldn't have offered much help. First, neither had been applied to non-religious corporations, which had never been thought to have religious freedom rights. Second, it would have been very hard to argue that a neutral law banning discrimination against LGBT people would have created a "substantial burden" on actual religious exercise, which is required to qualify for a RFRA-type exemption. For example, in one case the Supreme Court rejected the claim that requiring federal welfare recipients to submit social security numbers was such a burden even when it conflicted with an applicant's religious beliefs. And even if such a burden were created by obeying an anti-discrimination or other general law, pre-Hobby Lobby law would not have helped a religious claimant: as the Court ruled in rejecting a religious exemption to a requirement that a religious farmer withhold social security taxes, such an exemption would improperly "operate to impose the employer's religious faith on the employees" and others.
But then came Hobby Lobby.
In that case, writing for a bare majority of the Court, Justice Alito ruled that religious objections by a corporation's owners exempted them under RFRA from providing contraceptive coverage through insurance to employees under the Affordable Care Act. As Justice Ginsburg explained in dissent, rather than interpreting RFRA to restore prior case law, the majority interpreted it as going beyond prior Court decisions to maximize benefits to religious claimants. In particular, she explained, the Court effectively re-wrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.
So for far-right activists and legislators concerned about LGBT marriage equality and other rights, Hobby Lobby provided the perfect opportunity: pass state RFRA laws and effectively grant a religious exemption claim from LGBT anti-discrimination laws and local ordinances, based on the Court's re-writing of RFRA's language. Indeed, in communicating with supporters about the Indiana RFRA law, the far-right Family Research Council specifically called it the "Hobby Lobby bill."
Even better, rhetoric directed at outsiders could be cloaked in general language about protecting religious freedom, not attacking LGBT rights. Supporters could even invoke Democratic supporters of RFRA like President Clinton and claim that neither RFRA nor its state counterparts had been interpreted to allow discrimination, as Indiana Gov. Pence has tried to do. These claims ignore the fact that it wasn't until last year that the Supreme Court effectively rewrote the language in RFRA so that it was transformed from a shield for religious liberty into a sword against anti-discrimination protections. And previous supporters like President Clinton have made clear their opposition to this year's state RFRA proposals.
Under pressure, the neutral façade of recent state RFRA proposals has crumbled. When pushed to amend a state RFRA proposal in Georgia to make clear that it could not be used against anti-discrimination ordinances, a Georgia legislator admitted that one of the reasons for the bill was to allow it to be invoked by the small business owner who had religious objections to providing services to an LGBT couple. And when an amendment was added in the Georgia House Judiciary Committee to state that the RFRA bill was not to be used against discrimination laws, the bill was promptly tabled on March 26, with a supporter stating that the amendment would "gut" the bill.
As of now, the fate of RFRA bills in Georgia and elsewhere is uncertain and Gov. Pence has asked the legislature for an amendment to "clarify" that Indiana's RFRA law cannot be used to deny services to anyone. That would be a welcome step - one that flies in the face of the clear intent of some of the bill's backers, which was clearly to enshrine such a "right" for Indiana businesses. Language has been adopted elsewhere to make clear that state RFRAs cannot be used against anti-discrimination bills; such a provision is currently in Texas' RFRA, although there is a proposal to remove it. Before Hobby Lobby, such language might not have been necessary. After Hobby Lobby, it is crucial.
The Family Research Council’s Tony Perkins has excitedly touted a big “get” for this week’s Values Voter Summit: Meriam Ibrahim, the Christian woman who was persecuted by the Sudanese government over charges of apostasy. Evangelicals in the U.S. were part of the international chorus of voices who worked to keep a spotlight on Ibrahim’s plight, and Ibrahim may wish to thank some of the activists who advocated for her freedom.
But Perkins and FRC have another agenda entirely: They have been using Ibrahim as a prop in their relentless, over-the-top attacks on the Obama administration — and their claims that Christians in America are themselves facing government persecution.
Ibrahim’s vividly compelling case — for being a Christian, she was shackled to a prison floor with one small child while pregnant, then gave birth in jail — drew worldwide attention. Ibrahim had a Muslim father but was raised by a Christian mother, and in 2011 she married a Catholic American, Daniel Wali. She was arrested last September after being charged with apostasy — abandoning the Muslim faith — and for adultery given that the court didn’t recognize her marriage to a Christian. This May she was sentenced to receive 100 lashes and be hanged.
An Amnesty International campaign on her behalf generated more than a million signatures. European leaders condemned her treatment and called for her release. In the U.S., religious and political leaders called for her freedom. A petition on the White House website pushed by Perkins and others gained more than 50,000 signatures.
On May 15, the White House condemned her sentence in a statement by National Security Council Spokesperson Caitlin Hayden, which urged the government of Sudan to respect Ibrahim’s religious freedom and “to respect the fundamental freedoms and universal human rights of all its people.” The State Department also expressed concerns in May; Secretary of State John Kerry released a statement in June.
Ibrahim was freed on June 23, then re-arrested and detained briefly when she tried to leave the country. She was sheltered by the U.S. embassy for about a month until she was permitted to leave Sudan in late July. She is now living with her husband and children in New Hampshire.
Perkins has repeatedly used Ibrahim’s plight as a way to hammer the Obama administration.
In late May, Perkins fumed:
While many international groups have taken up efforts to pressure the Sudanese government to release Meriam and her children, the Obama administration has said little, and done nothing.
Think about this: two innocent American children are imprisoned abroad as their life hangs in the balance. If President Obama will not act in a situation like this, what will he act upon? Does Obama care?
Fox News’ hosts got in on the act, even as its own website was contradicting those claims. A May 31 Fox News story by Joshua Rhett Miller was headlined, “US 'fully engaged' in case of Sudanese woman sentenced to die for Christian faith.” It included a quote from the State Department:
“Through the U.S. Embassy in Khartoum, the White House and the State Department, we have communicated our strong concern at high levels of the Sudanese government about this case,” State Department spokeswoman Nicole Thompson wrote FoxNews.com in an email. “We have heard from many, many Americans that they are deeply alarmed by [Ibrahim’s] plight. We have conveyed these views to the Government of Sudan.”
Yet the video at the top of that very story on the Fox News website featured Perkins saying the U.S. government was doing “so far, nothing that we can tell” other than condemning Ibrahim’s treatment. Megyn Kelly fumed that the State Department had “refused to say bupkis” about what the U.S. government was doing. If Perkins or Kelly were aware of the possibility that U.S. officials may have believed that quiet diplomacy would be more effective, they gave no hint of it.
Other conservatives piled on: On June 11, Nina Shea at the Hudson Institute wrote, “And, as Ibrahim looks toward an appeals court review of her case, President Obama and the U.S. State department have been silent about it.”
On June 12, FRC and Concerned Women for America held a rally in front of the White House. Perkins was joined by Obama-bashers Sen. Ted Cruz and Rep. Trent Franks. Perkins’ remarks were wildly inflammatory. “There was a time when people of faith could sit down inside the White House and talk about these issues,” he said. Claiming that administration inaction was threatening the lives of Ibrahim’s children, Perkins said, “If this president is content with the blood of small children on his hands, then God help him.”
Perkins continued throughout the summer to complain that the Obama administration was doing nothing to help Ibrahim, even though he was told otherwise on his own radio show by a Republican congressman. On June 23, Perkins had Rep. Mark Meadows, R-N.C., on his radio show to talk about the case. As Brian reported in RWW, Meadows undermined Perkins’ attacks on the administration:
Asked if the State Department was working to help Ibrahim and her children, Meadows reported that the U.S. has in fact worked vigorously behind the scenes to free Ibrahim: “I got off of a call not more than an hour or so ago and a number of agencies across the board are working hand-in-glove to make sure that this is handled quickly and efficiently. And I am heartened by what I heard on that phone call and really encouraged that this is a government that cares about people. Sometimes I wish they would speak up louder and quicker, but I can tell you behind the scenes a number of agencies are working to make sure that they are safe.”
In July, Perkins testified about the case at a congressional subcommittee hearing. One of his fellow panelists, Grover Rees, who served as a U.S. ambassador during the George W. Bush presidency, said that even though Ibrahim’s husband had said he was rebuffed by a U.S. consular officer when he sought help, Rees believed that government agencies were doing what they could. Rees said that “the State Department seems to be making amends, supplying appropriate attention and care.”
Perkins has even kept up the Obama-bashing rhetoric since Ibrahim’s release and safe passage to the U.S. In August, Perkins cited the case as a reason people think Obama is a Muslim.
Perkins isn’t alone. In August, the American Family Association’s Bryan Fischer allied himself with ISIS’s characterization of Iraq’s Yazidi minority and griped, “Obama will fight for Satan-worshipers but not for Christians!”
ISIS has been beheading Christian children and crucifying Christians by the side of the road. Christians for months have been fleeing Iraq in droves ahead of the murderous hordes of Al Qaeda. And Obama yawns.
When Christian wife and mother Meriam Ibrahim is imprisoned in Sudan for being a Christian, and forced to give birth in a filthy jail cell while shackled to the wall, Obama yawns. While Christian pastor and American citizen Saeed Abedini languishes in the hellhole of an Iranian prison, Obama yawns.
But when worshipers of Lucifer get in trouble at the hands of the same blood-thirsty savages, suddenly Obama springs into action.
What this reveals about the president’s religious sympathies I will leave for others to decide. But it can’t be good.
Real Persecution vs the Religious Right’s Persecution Complex
We have previously suggested that American religious conservatives should be ashamed of equating their policy disagreements or losses in legal disputes with the kind of brutal religious persecution experienced by Meriam Ibrahim and so many Christians and other religious minorities around the globe. But Perkins and others have been happy to use her case to promote their narrative that Christianity in the U.S. is on the verge of being criminalized.
Advocates for LGBT equality are often portrayed as persecutors of Christians, as in Perkins’ statement in June that he was wondering, “When are they going to start rolling out the boxcars to start hauling off Christians?” As part of FRC’s announcement that Ibrahim would be speaking at the Values Voter Summit, Perkins said:
"Meriam's bold stand for Jesus Christ as she faced death has touched the hearts of people in every nation. Her incredible example of courage should inspire Christians in America to be bold and courageous in their faith as we witness growing religious hostility here in our country.”
“It is difficult to look at these facts [about Ibrahim’s case] and not understand then in the light of the current administration’s unilateral reinterpretation of religious freedom domestically. This administration believes religious beliefs should be quarantined to private spaces and excluded from the public space. This truncated view of religious freedom domestically, more accurately described as the freedom of worship, is matched by the administration’s failure to even address the growing threats to religious freedom internationally.”
In August, Dusty Gates, who works for the Catholic Diocese of Wichita, Kansas, wrote in Crisis magazine that liberals were uncomfortable supporting Ibrahim because they don’t support religious freedom in the U.S.
Naturally, this victory for freedom (liber) is being celebrated, at least to some degree, by liberals of all kinds. A human being freed from oppression, especially from such extreme persecution as Ibrahim faced, seems to be a grand slam for the liberal cause. But with the Ibrahim case, as well as the larger situation of global anti-Christian persecution, is causing liberals to sweat a little. Just as they stand up to cheer, it seems that their impending jubilation is cut short; subdued by a palpable fear that maybe they shouldn’t be celebrating the thing they want to celebrate. “A victory for freedom? Hoora… Oh wait, for religious freedom? Uh oh….”
Gates even slammed the welcome given Ibrahim by Philadelphia Mayor Michael Nutter, saying the Nutter’s comparison of Ibrahim to Rosa Parks rather than to other religious martyrs was “a subtle attempt to hijack Ibrahim’s story: taking it out of its full context and using it as a vehicle for the liberal agenda.”
In June, Christian author Benjamin Corey called out right-wing claims of religious persecution in the United States:
Meanwhile in the United States, we’re going about our daily lives panicking with cries of religious persecution as well…although, they’re not the cries one would think. Instead of a collective focus on wide-spread human rights abuses and religious persecution in places like Sudan, North Korea where an estimated 33,000 Christians have been incarcerated in prison camps, or the estimated thousands who actually die for their religious faith each year, we’re focused on a first world version of persecution that’s not really persecution at all.
When A&E temporarily made the decision to disassociate with Phil from Duck Dynasty over anti-gay comments he made in the media, it was labeled as “persecution”.
When public business owners in the baking industry have insisted on the right to discriminate and faced just accountability, it becomes another example of “persecution”.
We even have potential presidential candidates perpetuating such a persecution complex, with figures like Rick Santorum falsely stating that people who oppose same sex marriage are being sent to re-education camps.
With all of the legitimate and horrifying human rights violations occurring in the world, some in America have sadly adopted a very first world, privileged, and self-centered version of persecution. Instead of doubling efforts to shed light on international abuses, we’ve seen a flood of first world persecution claims– from internet trolls right up to the right wing members of government.
…Let’s reserve the “persecution” word for the real thing– such as what we saw in the case of Meriam Ibrahim.
Using Ibrahim to Attack LGBT Human Rights
Perkins has also used Meriam Ibrahim’s case to promote his attacks on the Obama administration’s advocacy for the human rights of LGBT people who face brutal persecution in many countries. In June, he wrote,
President Obama, who can't find a few minutes to call for Meriam Ibrahim's release from a Sudanese prison, had plenty of time to fly to New York and fundraise for homosexual activists.
In a late August direct mail piece, Perkins complained angrily about the “utterly shocking” fact that the rainbow flag was flown over the US embassy in Israel during a gay pride celebration.
“This would be outrageous enough all by itself—but the reality of the big picture is more frightening by far. The global Obama crusade for gay rights is happening against a backdrop of the total collapse of his real foreign policy responsibilities. We are witnessing an unprecedented level of anti-Christian persecution around the world, a colossal, international, multifront assault on religious freedom. Yet in response to these atrocities, the administration has remained all but silent….This administration is pressuring other nations to adopt Barack Obama’s radical gay agenda—but not to observe the most basic universal human right of religious freedom.”
The rest of Perkins’ letter goes back and forth between portraying the administration as fixated on gay rights and unconcerned about persecuted Christians. “We had no choice but to stand up for Meriam — because the Obama administration wouldn’t, and didn’t.”
“I urge you to stand with FRC Action again today as we fight back against the Obama administration’s outrages — their devotion to the cause of sexual immorality and their simultaneous indifference toward Christians suffering persecution for their faith.”
All the while Perkins portrays advocacy for the human rights of LGBT people — who certainly face brutal persecution in many parts of the world — as extremism.
When we see the rainbow flag of the homosexual movement flying over our embassies in Tel Aviv, London, and Prague, we can see with our own eyes what an extremist is sitting in the Oval Office.
Similar language appears in a September 6 fundraising email from Perkins, which says in part:
With President Obama promoting the homosexual movement around the world through the Obama administration, yet not working to prevent Christians from being persecuted, jailed, even tortured and killed for their faith, FRC Action’s work has grown more important than ever before.
As far as we can tell, Perkins and other Religious Right leaders haven’t raised much of a ruckus about the persecution of Saudi blogger Raif Badawi who faces 10 years in prison and 1000 lashes after being convicted of “insulting Islam” by calling for religious tolerance, or about the imprisonment in Indonesia of Alexander Aan for publicly declaring himself an atheist.
The Values Voter Summit
Meriam Ibrahim may consider an appearance at the extremism-heavy Values Voter Summit as an opportunity to thank the thousands of Americans who advocated on her behalf while she was suffering in a Sudanese prison cell, and to celebrate the freedom of religion that she and her family enjoy in America.
Unfortunately, her attendance at the Values Voter Summit will put her in the company of people like the American Family Association’s Bryan Fischer, who argues that the First Amendment does not protect religious minorities in the U.S., and the Family Research Council’s Tony Perkins, who argues that Christians whose beliefs on the equality of LGBT people differ from his do not deserve “true religion freedom.” And it will include many activists, like the Benham Brothers, who cry anti-Christian persecution despite their own record of working to restrict the religious and political freedoms of others.
Americans of every political and religious stripe can admire Ibrahim’s exceptional strength and courage in the face of real persecution. The same cannot be said for those who are trying to exploit her moral authority to advance their own political agendas.
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:
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.”
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.
Family Research Council President Tony Perkins implied today that Christians who support gay rights don’t have the same religious rights as conservative Christians because “true religious freedom” only applies to “orthodox religious viewpoints.”
Last month, a group of North Carolina ministers and same-sex couples, along with the United Church of Christ denomination, filed a lawsuit challenging North Carolina’s constitutional ban on same-sex marriage.
The clergy argue that because of a law that makes it a misdemeanor for a member of the clergy to perform a marriage ceremony without a state license, the same-sex marriage ban violates the religious rights of clergy who wish to perform such ceremonies.
When a caller on Monday’s edition of “Washington Watch” asked Perkins about his views on the case, Perkins replied that the ministers don’t have the same religious rights as others because they aren’t real Christians and therefore aren’t protected by the “true religious freedoms” given to Christians.
As we know, only Tony Perkins gets to decide who is and isn’t a Christian and has religious rights under the law.
Caller: I wanted to see if I can get your response to the members of the clergy in Charlotte that are suing for the right to perform gay marriages, saying that the ban on gay marriage infringes on their religious rights. It’s my understanding that they are a Christian organization, it’s normally the other way around, and so I’m curious to hear what you got to say about it.
Perkins: I would use that term ‘Christian’ loosely. That title is — let’s talk biblical, here’s the deal, it’s like with the Religious Freedom Restoration Act that we worked on in Mississippi and failed in Arizona and other places, here’s a test of what is a true religious freedom, a freedom that’s based on orthodox religious viewpoints. It has to have a track record, it has to come forth from religious orthodoxy.
You cannot point to the Christian faith and say that same-sex marriage has been a key teaching of the church. You can only point to the opposite, that the church has stood against sexual immorality in terms of sexual relations of those outside of marriage and in particular homosexual behavior. There is no place, there is nothing for them to stand on and say that same-sex marriage has standing in the orthodox Christian faith.
They’re playing games here, trying to turn the effort that so many Americans are now faced with of preserving religious freedom, they’re now trying to do a jujitsu move and say, ‘We’re going to use religious freedom to say we have a right to do same-sex marriage.’ Well, there is no foundation for that, there is no orthodox Christian holding that has ever said marriage is between people of the same sex.
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.
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.
"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.
Most RWW readers probably had little intention of reading Phyllis Schlafly’s latest column, entitled “Obama’s War on the First Amendment.” But just in case you were interested, we can spare you the time. Its ridiculous nature is encapsulated in one paragraph:
Obama has made it clear that he doesn’t want any expression of religious faith in any public place, including buildings or schools or events. He wants to redefine the First Amendment from “free exercise” to “freedom of worship,” which means you would only be able to go inside your church, shut and perhaps lock the doors, and say a prayer where no one else can hear you.
Actually that transparently false first sentence is enough. No expression of religious faith in any public space? Has Phyllis Schlafly ever listened to an Obama speech? Did she watch either of his inauguration ceremonies? His National Prayer Breakfast addresses?
It’s one thing to disagree with the Obama administration’s position requiring insurance coverage of contraception, and to take a position that private corporations have the right to exempt themselves from laws that company owners say violate their religious beliefs. It’s another to make the ludicrous leap that the administration is out to force all religious expression behind closed doors.
In her column, Schlafly says “Make no mistake; we are in a war for religious liberty.” Clearly, in Schlafly’s war, truth is already a casualty.
During the controversy over Hobby Lobby’s refusal to provide its employees with contraception insurance coverage and the outrage over Duck Dynasty star Phil Robertson’s being denied his supposed constitutional right to appear on television, we witnessed conservative activists stretch the limits of the meaning of religious freedom.
As Justice Scalia put it in Employment Division v. Smith, such an exaggerated view of religious freedom serves “to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
The Religious Right has increasingly brought this religious freedom argument into debates over gay rights and the teaching of evolution.
In Missouri, Republican lawmakers contend that public school students should get an exemption from any class on evolution — the bedrock of modern biology — if they think learning about science amounts to an “infringement on people’s beliefs”:
Rep. Rick Brattin, a Harrisonville Republican, said forcing students to study the natural selection theories developed by Charles Darwin a century and a half ago can violate their religious faith.
“It’s an absolute infringement on people’s beliefs,” Brattin said.
“Even though what’s being taught is just as much faith and, you know, just as much pulled out of the air as, say, any religion,” he said.
“The bill is one of several anti-evolution proposals that have already appeared in statehouses across the country,” TPM notes. “The proposals would allow for a range of approaches to evolution, from presenting a ‘debate’ over evolution versus creationism to requiring that local school boards allow intelligent design to be included in biology courses.”
And GOP lawmakers in at least three states are now citing religious freedom to claim that anti-gay discrimination that violates civil rights laws should not face any legal consequences.
Of course, many proponents of Jim Crow cited religious reasons to support segregation.
When passed, the new law will allow any individual, group, or private business to refuse to serve gay couples if “it would be contrary to their sincerely held religious beliefs.” Private employers can continue to fire gay employees on account of their sexuality. Stores may deny gay couples goods and services because they are gay. Hotels can eject gay couples or deny them entry in the first place. Businesses that provide public accommodations—movie theaters, restaurants—can turn away gay couples at the door. And if a gay couple sues for discrimination, they won’t just lose; they’ll be forced to pay their opponent’s attorney’s fees. As I’ve noted before, anti-gay businesses might as well put out signs alerting gay people that their business isn’t welcome.
But that’s just the tip of the iceberg. In addition to barring all anti-discrimination lawsuits against private employers, the new law permits government employees to deny service to gays in the name of “religious liberty.” This is nothing new, but the sweep of Kansas’ statute is breathtaking. Any government employee is given explicit permission to discriminate against gay couples—not just county clerks and DMV employees, but literally anyone who works for the state of Kansas. If a gay couple calls the police, an officer may refuse to help them if interacting with a gay couple violates his religious principles. State hospitals can turn away gay couples at the door and deny them treatment with impunity. Gay couples can be banned from public parks, public pools, anything that operates under the aegis of the Kansas state government.
It gets worse. The law’s advocates claim that it applies only to gay couples—but there’s no clear limiting principle in the text of the bill that would keep it from applying to gay individuals as well. A catch-all clause allows businesses and bureaucrats to discriminate against gay people so long as this discrimination is somehow “related to, orrelated to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.” (Emphases mine.) This subtle loophole is really just a blank check to discriminate: As long as an individual believes that his service is somehow linked to a gay union of any form, he can legally refuse his services. And since anyone who denies gays service is completely shielded from any charges, no one will ever have to prove that their particular form of discrimination fell within the four corners of the law.
President Obama can do nothing right in the eyes of the GOP, it seems: Even the president’s National Prayer Breakfast speech defending religious freedom has stoked the ire of one Republican congressman.
Rep. Steve Southerland (R-FL) told Family Research Council president Tony Perkins on Washington Watch last week that he was “stunned” and “shocked” by the president’s speech and was angry that Obama would “insult those who really believe” in the freedom of religion — like him.
Southerland argued that Obama is trying to “trivialize our deeply held beliefs by making statements that are so contrary to his actions and those of his administration.” “It’s the ultimate disrespect,” he said.
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 American Family Association hosted a luncheon on Friday at the Values Voter Summit. The featured speaker, Rep. Randy Forbes, was a no-show, though the audience was assured his non-appearance had nothing to do with ads being run in his district urging him to stay away. Whatever was keeping Forbes so busy that he couldn’t break away didn’t prevent Rep. Robert Aderholt (R-AL) from making it to the VVS hotel to give some opening remarks. Aderholt praised the activists, saying that the only way for America to be saved is for the country not to forget its founding values. In Forbes’ absence we also heard from Jerry Boykin, the retired general who is now a VP at the Family Research Council, and Lea Carawan, the director of the Congressional Prayer Caucus Foundation.
Boykin was his blunt self, asserting, “we are in a culture war today like America has never been” and complaining that the problem was with the church in general and with “Christians in name only” in particular. “The majority of the Christians in America today are dead, asleep,” he groused. “They are not involved in what’s going on in our culture. They’re not engaged in this culture war. They are not putting their faith into action.” He said it was the church that brought about the Revolutionary War and the abolition of slavery through the Civil War. When he looks at America today, he said, “There is no other solution to our ills than for the church to wake up, get off your dead behinds and get in this culture war that we’re involved in.”
Carawan picked up on Boykin’s message, saying that members of the Congressional Prayer Caucus and affiliated members in state legislatures are disappointed that they aren’t getting more backup from churches. For example, she said, members of the Maine legislature have had to do the organizing to get pastors involved in a push for a “religious liberty” bill. Carawan said the caucus was committed to an “offensive strategy” – one example she gave was Pennsylvania legislation requiring the display of “In God We Trust” in all the state’s public schools.
Carawan said the prayer caucus favors a neutral public square and religious liberty for all Americans, but in the next breath said “we are equally committed to advocate, aggressively engage the public for advocating that Judeo-Christian values be reflected in our laws and policy, because somebody’s values are going to be reflected in laws and policies.” The founding fathers, she said, fought “so that we could have Judeo-Christian values reflected in our government, laws, and policy.” The founders understood, she said, “that it is only Christianity, Judeo-Christian principles, that provides the only valid moral basis that will secure freedom for all Americans.”
Carawan warned that “the strategy of the secular progressive agenda is simple and dangerous: use the limitless financial resources at their disposal and the power of government to overwhelm and bury religious freedom in the ash heap of history. And that’s their plan. Not on our watch. Not on our watch. We’ve relied on defending our freedom in the courts. But this isn’t sufficient. We have to go on the offensive. We have to be aggressive. We have to stand up. We have to be intentional and strategic.”
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.
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.
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.”