FAITH-BASED INITIATIVES

Two enormously important issues have arisen in the past fifteen years that swamp the concerns many of us have about the state of “church and state separation.”

One is the notion of providing financial and other support for “faith-based” programs in religious settings—the so-called “faith-based initiative.” Although first implemented by President Bill Clinton (who sought to have its most unconstitutional provisions corrected after signing the first “charitable choice” bill late in his Presidency), it flourished under the Presidency of George W. Bush and then, unexpectedly, increased under the tenure of Barack Obama. As a candidate, Obama said that he would eliminate the most onerous proviso—allowing federally funded charities to discriminate in hiring along religious lines, giving preference to co-religionists. He did not stop this, however, relying on input from his first Faith-Based and Community Services czar, Joshua DuBois, and the threats made by World Vision and Catholic Charities to get out of the privately funded aid programs they had set up and for which they then sought government funding.

After President George W. Bush announced his Faith-Based Initiative during the third week of his presidency, it got a huge amount of attention. Much of that attention supported the initiative, but there was some criticism as well. Americans United did much of that criticizing, but surprisingly, we were joined by such “principled conservatives” as syndicated columnist Cal Thomas and the Cato Institute's Michael Tanner.

President Bush's efforts to get Congress to enact his version of the Faith-Based Initiative floundered for over two years. The Republican-controlled House, led by Texas congressman Tom DeLay, passed a bill, but the Democratic-controlled Senate let it lie on Congressional hearing room floors.

Bush's first Faith-Based Office director, University of Pennsylvania professor John DiIulio, managed to last for most of its first two years but then wrote a scathing critique of the program and left Washington to return to Penn. He was replaced by Florida-based Jim Towey.

The president eventually decided to bypass Congress and implement his “vision” of the program by executive orders. The essential features of his plan had not changed over those two years; neither had his justification or false claims about how beleaguered charities had been in the past.

I sorted through many speeches I did after the President unilaterally implemented his Faith-Based Program. What follows is a speech from 2003 to the Pew Forum in Washington. You may notice that the stinging critiques of the program then are still the ones I'm making today—evidence to follow.

Two years ago, when President Bush announced the Faith-Based Initiative, I said to some interviewer that it was the worst idea since they took King Kong from Skull Island and brought him to New York. I would now like to apologize to the Kong family; the president's idea is much worse. Now that I got that cheap laugh, I'd like to prove it was justified. Even though the president's program has never actually passed Congress and is being implemented in a kind of “stealth” atmosphere, virtually everything that has happened with it demonstrates unfortunate intended or unintended consequences of any government-funded religious programs.

All the particular problems find their genesis in a fundamental design flaw—the belief that you can protect Constitutional principles simply by assenting that public funds may go to religious groups so long as they were not used for “religious worship, instruction, or proselytization.” As often phrased by administration officials, tax dollars will be used to “buy bread, not Bibles.”1 This conveniently ignores that when the government does fund some loaves of bread for the church-based hunger program it just frees up more church funds to buy scriptures or raise the pastor's salary. On the flipside, it is not possible for most religious groups to just turn off the religious element of what they are doing when a federal dollar floats by, but turn the spiritual spigot back on when it is a voluntarily contributed dollar. In practical effect in most cases, grants to or contracts with religious groups do aid, do promote, do foster religion with tax dollars, violating a core principle of the First Amendment. In the process, those funds promote the theological assumptions, spiritual messages, and biases of the recipient. What do we see two-and-a-half years later?

The first major problem is that the administration has made every effort to legitimize the funding of invidious job discrimination. In every set of proposed regulations, and in the president's December executive order, there is clear language that permits a recipient to hire persons to run taxpayer-funded programs solely on the basis of their religious affiliation or beliefs. This means that a Roman Catholic provider can refuse to hire, or can fire at will, a pregnant single mother; it effectively permits a fundamentalist Christian church from putting the words “NO MUSLIMS NEED APPLY” on the top of its employment form. The president asserts this is designed to protect the integrity of the religious identity of the organization. Of course, private religious groups can make such employment decisions with privately solicited funds. However, the constitutional and moral calculus changes when tax dollars enter the equation. It is wrong to create a system where you can be taxed to help pay for a job you cannot get even if you are eminently qualified for the position. I have never found that a Methodist ladles out stew in a soup kitchen differently from a Hindu, nor do Baptists change the bedsheets in a homeless shelter using a different methodology than a nonbeliever. The administration has poisoned the employment pool, aiding and abetting state officials who want to dole out tax dollars to discriminating organizations. For example, the Lambda Legal Defense Fund represents Alan Yorker, a psychotherapist who wanted to work at the Methodist Home for Children in Georgia. The Home functions as a residential foster care facility and is 40 percent funded by state taxpayers. When Mr. Yorker arrived at his job interview, he was asked to fill out an information form, and he placed the name of his rabbi and synagogue in the spaces labeled “Pastor” and “Church.” When the Home's administrator reviewed it—oops—she said we don't hire Jews.2 Another employee had been informed that the Home's practice was to “throw in the trash” resumes with “Jewish sounding names.”³ This is morally wrong. If you get government money you have to be open to hiring the best qualified person, without regard to religious opinion.

We have a similar complaint in our own suit against Iowa and the Prison Fellowship, where funds go to a prison ministry program that hires—and indeed only accepts as volunteers—evangelical Christians, but which gets virtually all of the funding for such “rehab” programs in that facility.

Second, there is growing doubt about who will in fact be getting these funds. When George Bush was campaigning for the presidency he said that groups promoting hate would not be eligible, specifically mentioning the Nation of Islam.⁴ White House official Stephen Goldsmith, has said that Wiccans could not get funding because they were not “humane” enough to provide services like child care.⁵ In America, we can personally have all kinds of biases based on our theological differences. We know that just by listening to Jerry Falwell, who has opined that Mohammed was a “terrorist” and “a virulent man of war.” I once had to remind him, for the record, that there were a lot of people who thought Jerry was pretty hateful himself. But I cringe at the very idea that governments will put together lists of acceptable and unacceptable religions on the basis of the passion of their rhetoric or the idiosyncratic nature of their beliefs. Government seals of approval for faith serve as an exemplar of how little this administration understands about the First Amendment.

The flip side of this is that groups that are being courted by politicians could become the beneficiaries of government largess. Sadly, we don't need to speculate about this anymore: it happens. Last September, Secretary of Health and Human Services Tommy Thompson announced twenty-one grants out of the Compassion Capital Fund, a program that was set up solely for the purpose of funding “technical assistance” programs so that small charities could learn how to apply for public and private grants. Over five hundred grant applications for all kind of programs were received. Imagine my surprise when I discovered that one of the “winners” was the Reverend Pat Robertson's Operation Blessing, the beneficiary of over a half million dollars.⁶ Could it be true that the most controversial TV preacher in America, who said that Americans had caused the World Trade Center attack and that Hindus are devil worshippers, was being funded? That Pat Robertson, who has a billion dollar endowment for his university alone, was getting one of these twenty-one grants? Operation Blessing is a tad controversial in its own right because it was caught diverting its medical missionary planes in Africa in order to pick up equipment for Pat's diamond mining company in Zaire.7 Only a quick “refund” prevented a criminal prosecution in the state of Virginia. Anyway, half of this money will be used for his own program, and the rest will be distributed to other groups, ostensibly for “training.” However, there is no real oversight of sub-grantees, so it will be hard to figure out where it goes or how it is used. But, here's my hunch: no Hindus will get any.

I don't want to beat up on Brother Robertson excessively, but this grant illustrates another curious point about the insidious nature of this initiative. When first announced, it was not only Barry Lynn who opposed it; so did Pat Robertson. He warned that any group that took federal funds would end up finding it to be a—his word—“narcotic.”⁸ He doesn't say that anymore. It is difficult for a religious institution to be on Caesar's dole and still speak critically of Caesar. How loud will the prophetic witness be if the prophet's microphones are purchased by the state?

A third trend is that the Faith-Based Initiative is becoming a perfect example of how governments try to palm off on private groups the problems they can't or won't fix themselves? I used to predict that this plan would amount to just dumping the poor on the church steps one day, dumping a small bag of money there the next day, and then praying the two find each other. That is now precisely what is happening. From the outset, the president's program itself contained infinitesimal additional funding, if any at all, for those in need. He seems to want to pit the current providers against a raft of new faith-based providers for the crumbs from an increasingly small slice of federal funding pie for human needs. In the first year of his Presidency, George Bush did things like “zero out” an entire program for inner city development.⁹

And nothing has changed in the current budget. About four hundred thousand people may be kicked off the low-income fuel-subsidy program, which primarily helps people to heat their homes in the winter. Now, think about this: If it is too cold to stay in your apartment because you have lost your heating subsidy, why should we be impressed if a small percentage of the newly homeless will be taken in by a federally funded faith-based homeless shelter? That is not compassion; that is just plain stupid.

Fourth, the blatantly political and partisan nature of this whole effort is abundantly clear. It was clear even before the first Faith-Based Director John DiIulio issued his scathing critique of the White House “Mayberry Machiavellis”—his phrase—in Esquire magazine. The administration has been setting up how-to seminars to lure people, particularly African American pastors, into hearing about this “faith money,” as one speaker puts it, and believing they will actually get some of it.10 The locations of these efforts, though, made for a very suspicious pattern in advance of the recent elections. They were overwhelmingly being held in congressional districts deemed pivotal in the Republican effort to retain control of the House, or in states like Florida with highly competitive gubernatorial elections. In South Carolina, the event was actually cosponsored by the state Republican Party—the invitation to the Democratic Party there apparently lost in the mail.¹¹ This is the worst kind of politicizing of the church. This administration knows, though, that the church can be tempted just like anyone else and sometimes give in. Whenever I made this allegation during the last electoral cycle, Jim Towey and his staff would deny it. You know where Mr. Towey spent Election Night 2002 according to the Miami Herald? Watching the returns with Gov. Jeb Bush and his family!¹²

Fifth, the administration is already paving the way for implicit and explicit restrictions on the content of religious programs that will be eligible for funding. For example, several grants have now gone to Christian groups for “strengthening marriage.” For most religious groups, marriage is a sacrament. When the government funds a program that teaches that divorce is never acceptable in the eyes of God, doesn't this in fact give government blessing to certain theological beliefs? It is absolutely inevitable that grants will eventually be awarded after a review process that includes consideration of the theologies that undergird the potential recipients’ programs.

This is already occurring in other programs involving intimate personal matters. Funding for community- and school-based sex education may only go to organizations that teach “abstinence only before marriage,” not merely that abstinence is preferable. One program in Louisiana has been successfully challenged in federal court because tax dollars are paying for a blatantly fundamentalist curriculum.¹³ If we go one step further and restrict the content of a program run by a faith-based group, you are effectively giving preferential treatment and funding to some theological viewpoints over others.

It is not only “liberals” who worry about this. Columnist Joseph Farah complained recently that some “faith-based money” might end up going through the Department of Energy to religious groups that have left-wing environmental views.14 After all, many denominational structures actually believe in “global warming”; the National Council of Churches actually got behind that “What Would Jesus Drive?” campaign challenging the auto industry's apparent belief in the God-given right of every man, woman, and driving-age child on the planet to own an SUV.¹⁵ Ladies and Gentlemen, we cannot allow a system that makes funding decisions in part based on parallels between an administration's secular policy goals and a religious group's theological and ethical understanding. That is the road we are traveling.

We now know that the president wants to help more persons who are substance-addicted by giving them vouchers so they can go to any treatment program they want,¹⁶ including those that believe that addiction is “sin,” pure and simple, and reject even a medical component to their programs. The Louisiana-based group he praised in his State of the Union address is in that category.¹⁷ Again, we cannot fund religious conversions, even if that had a temporary side benefit of stopping a person from substance abuse. The successful court challenge of one of the Wisconsin Faith Works programs makes that clear.¹⁸ Of course, we don't know whether these untested programs even have that secondary effect, but to this administration that doesn't appear to matter very much. How does a homeless street addict know where to go with her voucher to get real help? Will U.S. News and World Report do an issue on best addiction programs like they now do one on best graduate schools? Many of us have worked with persons with addiction challenges at some time in our careers. These are frequently people for whom the very idea of “choosing” services is an absurd proposition. Of course, this is the same administration that believes if we just privatized Social Security my eighty-eight-year-old mother could go back to picking stocks to pay for her nursing home care.

Last month, the nation learned that the administration would be allowing federal housing department dollars to be used for the partial construction of houses of worship. Here's the theory: If you want to build an annex to the church, which contains a Sunday school room and a counseling center, a portion of the walls, mortar, and roofing tiles equivalent to the space used for secular purposes will be eligible for taxpayer funding. Now think about this. First, in l971 the Supreme Court ruled that church-related colleges couldn't even get construction grants for mixed-use, religious and secular, campus buildings. It went further by upholding a requirement that any college that accepted the funds for secular purposes had to guarantee that the building would be used secularly in perpetuity. If the Constitution doesn't permit campus construction, what is the administration thinking when it comes up with building grants for mosques, temples, churches, and synagogues? In America, we build our places of worship and mission with our own dimes and dollars, not those of our neighbors who choose some other path to enlightenment and/or salvation. Just a final practical note: How do we monitor the percentage of “religious” use? Perhaps we could divert those red-light-runner spy cams to the vestibule. Maybe even bring in the currently unemployed Enron auditors.

Sixth, and finally, we have mounting evidence that significant damage is being done to current ecumenical efforts and other community initiatives:

As one example, in a public display of animosity, two African American leaders in Louisville, Kentucky, had a difference of opinion about the value of the Faith-Based Initiative. In letters and news articles, one labeled the other a “hustler” and a “Judas,” while the other responded that his critic was “discombobulated,” had not read the Bible, and was actually a “Judas” himself. So much for harmony among the peoples of God.

In a second incident, a homeless shelter for veterans west of Boston was told that its federal grant was being cut from previous years so substantially that almost fifty percent of the beds would be eliminated. Their lost funds were now to go to several “faith-based” shelters in Utah and North Carolina. A veteran's activist told the Boston Globe bluntly that this meant more people in Massachusetts would be out in the cold and, quote, “more people will die.”19 This is what happens when you look at the wrong problem in the first place: The problem in America is the needs of human beings crying for help, not the false claim, the lie, that “faith based organizations” have not had a level playing field, so we should make up for it by punishing secular groups. The Salvation Army—a religious denomination—would barely exist if it wasn't for the tax dollars of the American people.

This whole program is so tempting though, in spite of what I have just said. However, notwithstanding the State of the Union address where the President spoke of funding everything from AIDS projects in Africa to hydrogen-powered cars, we know that the public is never going to support the level of taxation necessary to accomplish that and everything else. Therefore, we must keep private philanthropy alive and well. I remain concerned that one unintended consequence of the Faith-Based Initiative will actually be a reduction in voluntary faith community giving to others. If Uncle Sam is paying for the Presbyterian Wednesday night dinner for the homeless in your church, won't a few of your parishioners think about skimping on that pledge for next year? But how do you get it back when Uncle Sam likes the Methodist program across the street more than yours next year, and you lose that grant you got this year?

OK, I admit it. I don't like the Faith-Based Initiative. In fact, it should crawl back in a hole before it does any more damage to the integrity of our civil rights laws, the First Amendment, or the faith communities of America. It is about time sensible people reject the idea that the president's “armies of compassion” can get their marching orders from the church but expect their rations from the taxpayers.

In 2003, the White House Office of Faith-Based and Community Initiatives issued the report entitled, “Protecting the Civil Rights and Religious Liberty of Faith-Based Organizations: Why Religious Hiring Must Be Preserved,” outlining the administration's Faith-Based Initiative and again setting out its ill-conceived arguments as to why it allows organizations to discriminate with government funds. In that same year, then president Bush issued Executive Order 13279, which provided for hiring discrimination in religious institutions, even if they are receiving government contracts. This was a drastic departure from existing law and overrode an executive order issued by Lyndon B. Johnson, which required all federal contractors, including faith-based organizations, to hire without regard to religion.

In 2007, the Office of Legal Counsel (OLC) for the Department of Justice issued a memo asserting that faith-based organizations have a right under the Religious Freedom Restoration Act (RFRA), to engage in employment discrimination with federal funds. The memo concluded that RFRA could be “reasonably construed” to allow a faith-based organization providing social services to be exempt from statutory restrictions on religious hiring, even if the statute contained an explicit antidiscrimination provision.

So, this was where we left it at the end of the George W. Bush administration. But candidate Barack Obama had expressed a deep sense of concern about the hiring discrimination issue on the campaign trail in the summer of 2008 and we went into high gear at Americans United to try to flesh out how to implement his apparent interest in “fixing” the system—although we had scant hope that he would terminate it. By February of 2009, however, it was sickeningly clear that few if any changes would be made—but there was still the tantalizing possibility that some other issues might get resolved later by the Department of Justice.

FAITH-BASED FOLLY: OBAMA'S EXECUTIVE ORDER LEAVES MUCH TO BE DESIRED20

Thursday, February 5, 2009, was not an ordinary day at Americans United. It was a day that could have been an historic and positive one for the separation of church and state. Indeed, it started by having the president of the United States affirming his strong support for that very concept at the National Prayer Breakfast, a private event held at a Washington, DC, hotel.

Unfortunately, not long after saying that, Barack Obama announced he would soon be signing an executive order creating a kind of refurbished White House office on faith-based initiatives, to replace the one originally created by George W. Bush.

Even with changes, I thought the office would be deeply problematic because it is so difficult to monitor the actual use of funds and figure out when a “spiritual” activity was being funded by private dollars and when by taxpayer dollars. However, candidate Obama sure seemed to be moving in several positive directions.

In the days leading up to the February announcement, we heard many rumors and reports, often in conflict, about exactly what rules Obama would establish in his executive order. AU Director of Legislative Affairs Aaron Schuham and his staff had many visits and calls with Obama staffers to lay out our case.

All we could do was wait. I began to get suspicious that things weren't going well when National Public Radio contacted me for comment. An official with the evangelical Christian organization World Vision claimed that Obama had indicated that he would not repeal a Bush executive order allowing religious groups to take tax funds and still discriminate on religious grounds when hiring.

Obama signed his executive order several hours after the Prayer Breakfast, in a private ceremony with no reporters present. The release of the order was delayed by several hours, but it was finally made public at about two in the afternoon.

What a shocking disappointment!

Here was an order setting up a faith-based office and a council of “advisors” (mostly clergy), with no roadmap for what they were supposed to do. There was no sentence that said that this council must work strictly within the confines of the First Amendment and in concert with the civil rights principles of our nation.

Worse, not one of the Bush-era executive orders was overturned, including the one giving religious groups a “right” to take public funds and still discriminate when hiring staff. It read as if the twenty-six-year-old Pentecostal minister who was named executive director of the faith-based office was just supposed to make up whatever rules he wanted.

It made it pretty hard to figure out how to even respond to the press—not usually one of my problems. Did Obama break his promise from Ohio? I noted that it was, at least, a “promise unfulfilled.” Did this mean that a Christian group receiving funds for food distribution could say they would hire no Jewish or atheist truck drivers to deliver the produce?

Well, yes, since the old regulations were still in place. Could proselytism occur in these programs? I said I hoped not—but nothing in this order prohibited it.

The order did state that some of these issues might be submitted to the US Justice Department for review. What would happen there, reporters wanted to know. I could only say what I wished would happen—a ruling that hiring bias with tax funds is always wrong.

This was a real nightmare. And we didn't have to have it. The solution to these legal questions should be apparent. As US Rep. Bobby Scott of Virginia put it to me, “You are either against religious discrimination or you are for it.” How could Obama answer any way but “against”?

I think Obama has fallen prey to bad advice. The president seemed convinced that religious charities cannot function without the authority to hire people who are “like them,” even to do the most menial tasks. That's the same bogus reason that people have always given to justify discrimination: people like eating in lunchrooms with members of the same race; business passengers are “more comfortable” seeing stewardesses in skirts than male flight attendants.

In the case of government programs, however, are we taxpayers supposed to concur with such use of our dollars? Not at all.

A lesbian plaintiff in an ongoing AU-sponsored lawsuit challenging faith-based abuses put it well.

“If a group can discriminate against me because of my orientation,” she said, “I can't even get a job I helped pay for with my taxes.”

Sadly, that is precisely what will happen if the president doesn't get this right, and get it right soon.

So, the gamesmanship of the Obama administration's faith-based office continued.

New “faith czar” Joshua DuBois held a number of meetings to garner support for the idea in principle and announce the twenty-five-member “advisory council” for the presidential initiative. He also noted that there would be “task forces” set up to assist the advisory council and that I would be on one of them, dealing with the “constitutional and legal basis for the office.” This was a lengthy and unsuccessful process.

In 2010, I wrote a scathing piece about all this for the Huffington Post. This led to a blistering phone call from Joshua DuBois that evening while my wife was driving me home in her Prius (now you know what a tree-hugger I really am).

FAITH, HOPE, AND CHARITY: WHY PRESIDENT OBAMA'S “FAITH-BASED” AGENDA MUST CHANGE21

I am not a member of the president's twenty-five-member Advisory Council on Faith-Based and Neighborhood Partnerships, the body Obama formed one year ago to examine these issues. But I did serve on a task force offering the Council advice on a range of questions.

During our deliberations, I often found myself on the other side from conservative religious activists, who resisted even the most benign and reasonable rules that would safeguard the rights of taxpayers and the disadvantaged as well as help preserve the constitutional separation of church and state.

For example, I argued that all public funds that go to a house of worship to operate social services should be handled by a separately incorporated nonprofit—or at least be kept in a separate bank account so we can keep track of how the money is spent. A 2006 report by the Government Accountability Office examined faith-based offices in several federal agencies and found a lack of oversight of these programs.²²

I also urged that publicly funded social services should not take place in a space where sectarian symbols or signs might make some disadvantaged people feel unwelcome. (Think of the homeless gay man who thinks of a large cross in a space providing dinner as the same icon wielded by Pastor Fred Phelps the last time he was in town to tell gays that they would be heading to hell.)

Conservative religious representatives on the Council disagreed. They want sectarian groups to have access to plenty of government money with very little (if any) meaningful accountability. That's the status quo; they like it.

Worse yet, some of the Council members appointed by President Obama are powerful religious lobbyists whose denominations and groups benefit handsomely from government funds. They include representatives from the US Conference of Catholic Bishops, Catholic Charities, the Union of Orthodox Jewish Congregations, and the evangelical charity World Vision.

Government databases indicate that Catholic Charities (including its various affiliates) has taken at least $521 million over the last ten years. The Catholic bishops’ conference has corralled $304.8 million over the same period, and World Vision has taken in $405.9 million. Orthodox Union-affiliated synagogues and Jewish schools have also benefited from millions in federal grants, though government reporting methods make the precise figure impossible to ascertain.

Wouldn't this be a conflict of interest by any ethical standard?

But, aside from the Council, other faith-based policies in the Obama administration are just as problematic. When Americans United urged the Department of Justice (DOJ) to discontinue Bush-era funding for four fundamentalist groups that openly discriminate and proselytize, DOJ attorneys brushed aside the request. These organizations, they assured AU, had been told not to violate the law.

The DOJ, so far, has even refused to overturn a Bush-era memo that gives faith-based charities a sweeping “religious liberty” right to engage in employment bias in all federally funded programs.

Don't think this doesn't matter in the real world or that it's all a theoretical spat among policy wonks obsessed with arcane Beltway regulations. The Global Post recently ran a troubling story about World Vision, which received $281 million in government grants in 2008—yet offers full-time employment only to Christians who fit the group's creed.23

The story makes it clear that people in other countries are being denied jobs in US-funded programs because World Vision is discriminatory. As Torrey Olsen, World Vision's Senior Director for Christian Engagement, put it, “We do want to be witnesses to Jesus Christ by life, word, deed and sign.”24 Fabiano Franz, another World Vision official, added, “We're very clear from the beginning about hiring Christians. It's not a surprise, so it's not discrimination.”²⁵

Why is government—which is supported by taxpayers of many faiths and none—subsidizing such bias and evangelistic activity?

Dissatisfaction with Obama's inaction on this issue is widespread. On February 4, 2010, twenty-five national religious and public-policy organizations sent a letter to Obama, urging him to fix the faith-based initiative. The groups range from the American Association of University Women, the Human Rights Campaign, and the National Association for the Advancement of Colored People to the American Jewish Committee, the Baptist Joint Committee for Religious Liberty, and the United Methodist Church, General Board of Church and Society.

These groups have grown impatient with Obama, as have I, for leaving the odious Bush faith-based scheme in place substantially unchanged.

Our persistent efforts to convince the President to alter his faith-based initiative have, to date, largely failed.

IT'S TIME FOR OBAMA TO FIX THE FAITH-BASED INITIATIVE²⁶

The White House is now pondering recommendations offered by its Advisory Council on Faith-Based and Neighborhood Partnerships. I've written here before about inappropriate financial self-interest on the part of numerous members of that Council. However, what were the overall merits and demerits of the final report presented to President Barack Obama in the Oval Office on March 9?

Many of the issues the Council tackled resulted in consensus recommendations that I support. First, the Council urged strengthening the rules requiring the separation of religion from government-funded programs. Any federally funded program must be separated in time or space from any religious activity in a facility. People being served have a right to refuse to attend any religious activity occurring there. The Council also asks the President to adopt separation rules that would be applied to all federally funded programs and to vast numbers of sub-grantees as well.

Second, the Council unanimously urged the President to strengthen protections for social-service beneficiaries. The recommendations state that beneficiaries who attend publicly funded programs operated by faith-based organizations must have a right to an alternative religious or secular provider and must be informed of this right when they first enter the program.

Third, the Council urged the President to increase transparency and monitoring. Council members admitted that “it has not been easy for us to locate and access information” and documents.27 Imagine, then, how difficult it would be for an average citizen to find grant applications or documents. Thus, the Council requested that government agencies be required to post information, including the identification of recipient groups, on the internet. The Council acknowledged that the government has a “constitutional obligation to monitor and enforce church-state standards” in federally funded programs.²⁸

Posting information about who received grants and how the money will be used would make it easier for civil liberties activists to get a heads-up on grants that seem constitutionally or otherwise legally suspect. For example, a US Government Accountability Office investigation indicated that many religiously oriented groups that got grants and contracts during the last administration flagrantly ignored prohibitions on using funds to promote their religious beliefs.²⁹ (Some were reportedly surprised to learn they had any restrictions.) We have found groups using public funds to purchase Bibles and Jesus keychains, and some faith-based ministries take public funding for “secular” efforts while proudly proclaiming on their internet sites that they are Christ-focused 24/7.

To my disappointment, however, the Council failed to reach consensus on two major issues. By only a one-vote margin, the Council recommended that houses of worship that seek to receive federal funds must form separately incorporated entities to use them. (This could include setting up a tax-exempt 501(c)(3) charity or other appropriate structure.) This is necessary to protect the autonomy and integrity of the religious institution as well as ensure that federal funds are not used for religious purposes.

Opponents claimed this would be too burdensome. Curiously, however, no evidence was actually offered that any groups would decline federal aid if required to set up a secular arm.

Most troubling is that sixteen Council members asserted that “the administration should neither require nor encourage the removal of religious symbols where services subsidized by Federal grant or contract funds are provided.”30 In the view of most scholars, the Constitution forbids government to send religious messages to beneficiaries participating in publicly funded programs through signs, symbols, or iconography. Only nine members of the Council, however, supported a standard mandating that such religious messages be removed, at least where “feasible.”

Why is this such a big deal?

Frankly, the whole point of separating evangelism from secular services, such as serving meals and providing job training, is that rock-solid First Amendment doctrine forbids government entities to advance religion. What is a more potent promotion of any religious system than having the central symbols of that faith (a Christian cross, for example, or religious statements like “Jesus said, ‘I am the Way, the Truth and the Life’”) on the walls of a soup kitchen or counseling center?

Many religious groups promote the idea that a single encounter with the core message of the faith can lead to spiritual conversion. Is someone seeking shelter going to have the courage to report that this faith-saturated environment makes her or his children feel unwelcome and very uncomfortable? And, in most parts of the country, how long will it take to even locate some alternative provider? In reality, her real choice may be whether to face the symbols of a faith not her own or go cold and hungry.

The Council report and the process for faith-based reform are now back in the president's hands. There should be no more studying, and no more delays. I hope that President Obama will act expeditiously to fulfill his campaign promises to place the faith-based office on sound footing.

This means accepting the Council's good recommendations (which were agreed to by every Council member from the past president of the Southern Baptist Convention to the religious outreach director of the Human Rights Campaign) and toughening the ones I've addressed here.

We've seen lately that executive orders—even on contentious issues—can literally be written overnight. That's all it would take here.

I really don't want to get too deeply “into the weeds” here. But the bottom line is that the Advisory Council report mentioned above, with its twelve unanimous recommendations and its above-noted deficiencies was the basis for a number of what could loosely be called “procedural next steps.” An interagency working group was supposed to examine this document and come up with a report within 120 days. It eventually, and somewhat belatedly, reported back in April of 2012. Sixteen months later, the Office of Management and Budget (OMB) issued a memo advising agencies to develop regulations and guidance on how to implement the president's program that were “consistent with the Working Group's model guidance.”31 The director of the president's Faith-Based Office has been meeting with members of each agency to draft and promulgate new regulations. Public comments will then be accepted so that agencies can consider editing their regulations. After public comment, the agencies will issue final rules. It should be noted that the president will leave office in January of 2016.

Obviously, faith-based-hiring changes have also not occurred to date. The Department of Justice still relies on the Bush-era OLC memo that allows religious organizations to engage in “preferential” (I call it “discriminatory”) hiring with taxpayer dollars. Lest there be any mistake about that, an FAQ (frequently asked questions) document for the Department of Justice issued in 2014 regarding implementation of the Violence Against Women Act—which specifically prohibits religious discrimination—allowed the same kind of “preferential” hiring mentioned in the OLC memo.³²

FAITH-BASED PROCRASTINATION: RELIGIOUS JOB BIAS IN TAXPAYER-FUNDED PROGRAMS³³

No American should be denied a taxpayer-funded job because of what he or she believes about religion. Yet that's exactly what is happening today under the “faith-based” initiative. It's wrong, and it is time for it to stop.

The idea of awarding tax aid to religious groups to run various secular programs for people in need is not new. As a strict advocate of separation of church and state, I'm not a huge fan of the idea, but courts have permitted such public aid under certain conditions.

What is new is the insistence that religious groups can take tax aid and still engage in overt discrimination on religious grounds when hiring staff. This concept was aggressively promoted by the administration of President George W. Bush. It was a bad idea then, and it hasn't improved with age.

However, Joshua DuBois, executive director of the White House Office of Faith-Based and Neighborhood Partnerships, at a recent Brookings Institution gathering, did note that the pesky hiring issue was officially “entirely unresolved.”

I'd call this a “close but no cigar” assessment of what is actually going on. I have no doubt that the administration didn't want to resolve the hiring issue in the midst of a campaign where every opponent of the president had declared him the lead general in some completely nonexistent “war on religion.”

For several years, though, Obama administration officials have said that any discriminatory hiring in federally funded programs would be assessed on a “case-by-case” basis—although they didn't disclose what standards were to be used to make or break the “case.” Standardless reviews are usually referred to as “doing whatever you want,” not a well-known constitutional or administrative law standard.

At the Brookings event, DuBois acknowledged that “the policy is as it was before.”34 This has meant that a religious grant-seeker could simply assert—you might say “self-certify”—that it believed its religious practice would be “burdened” by not being allowed to take government funds and discriminate with them.

The Justice Department has acknowledged it affirmatively permitted nine grantees to use religion to discriminate in 2009 alone. There is no information on how many more of these waivers have been granted by other agencies or whether anyone's “self-certified” assessment had been rejected.

Many people have heard that it is a burden to have to hire openly and without regard to some particular attribute. It's an old argument. Airlines used to say they didn't want to hire men as flight attendants because the then-overwhelmingly male business travelers felt more “comfortable” with service from pretty young women in skirts.

Comfort level in these instances has long been rejected as a legally permissible standard. Yet some religious voices of today make spiritual camaraderie a basis for using taxpayer dollars from all to hire only from a pool of those just like them. Under the faith-based initiative, this is elevated to some kind of constitutional rights claim instead of being relegated to the dustbin of invidious discrimination.

Our country first committed itself to the principle that no one should be disqualified from government-funded jobs because of his or her religion in 1941, when President Franklin D. Roosevelt signed an executive order ending such discrimination.

Subsequent presidents—Republican and Democrat alike—recommitted themselves to this principle over the next several decades. As President John F. Kennedy explained, “[I]t is the plain and positive obligation of the United States government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed or seeking employment…on government contracts.”35

After this longstanding national commitment to nondiscrimination was repudiated by the Bush administration, I was heartened in 2008, when, as a presidential candidate, Obama promised to return to our old principles.

“If you get a federal grant,” he said during a speech in Ohio, “you can't use that grant money to proselytize to the people you help and you can't discriminate against them—or against the people you hire—on the basis of their religion.”

Fulfilling that commitment should not be so hard. It would be a simple acknowledgment that Bush had been wrong in his failure to adhere to a decades-old commitment to a civil rights framework that didn't allow religious discrimination either.

Much was made at Brookings of the work the current White House faith-based office does to encourage interfaith dialogue and programs in the United States and around the world. There was even a hint that this might help national security—and, yes, it might.

But it could also backfire. Is US prestige overseas enhanced when we give tens of millions of dollars to groups like World Vision, an evangelical outfit active around the globe—even in predominately Hindu or Muslim nations—that requires employees to sign a Trinitarian Christian statement of faith?

More to the point, how can any administration make a case, with a straight face, that our national values are respected when some religious employers can receive taxpayer money even as they figuratively or literally post signs reading, “Help Wanted. No Jews, Muslims, or Hindus Need Apply?”

Organizations—religious or otherwise—that take government money must abide by certain rules. That some religious groups don't want to follow the rules does not mean their religious freedom rights have been violated; they aren't entitled to these funds, nor are they required to take them. The organization can continue to do their work and discriminate with their own money.

The government should not fund efforts to use religion to discriminate. We must protect the religious freedom of our government employees and stand for the principle of nondiscrimination.

In July 2014, President Obama signed an executive order barring federal contractors from discriminating in hiring on the basis of sexual orientation or gender identity. Even though when the order was initially proposed, some religious groups immediately called for an exemption for “faith-based” organizations. Americans United joined with ninety-eight religious, civil rights, women's, LGBT, secular, and other groups in a letter urging Obama to reject those demands.

The President ultimately agreed with us. This executive order makes no exemption for religious groups, which we hailed as a step in the right direction.

Still hanging out there like a pernicious hangnail is the option that faith-based groups that accept federal contracts be allowed to prefer members of their own faith in hiring—under that executive order that dates from the George W. Bush presidency. Of course, it may be very difficult to figure out if “religious” preference is not merely a cover for anti-LGBT bigotry.

 

RELIGIOUS REFUSALS: “WE DON'T HAVE TO OBEY THE CIVIL LAW BECAUSE…”

Religious groups have consistently sought exemptions from laws of general applicability. Indeed, they have sought to be excluded from the requirements of licensing daycare providers, zoning regulations, and nondiscriminatory hiring. They also have asked for tax exemptions relating to everything from property tax and tax-exempt bond financing to sales tax on religious publications.

Are all of these “special privileges” necessary? Almost certainly not. Indeed, very few “exemptions” have been reviewed by federal courts and, in some instances, special treatment has been ruled unconstitutional.

In 1982, an Amish employer famously sued the US government, claiming that he should not have to pay Social Security taxes for his employees of any religious background because individual Amish do not contribute to, nor benefit from, the Social Security program. The Supreme Court disagreed, stating that the Social Security tax for employees was not an infringement upon the employer's rights.36

But in 2014, a new and sweeping construct hit the news—related specifically to the Affordable Care Act (aka “Obamacare”) and its coverage of insurance for contraceptives.

SILENT WITNESS: HOUSE PANEL CAN'T HANDLE THE TRUTH FROM SANDRA FLUKE—OR ME³⁷

I was once, literally, a footnote to history. In an important Supreme Court decision involving the military draft, Justice William Brennan (sadly, in dissent, as he so often was) cited some of my testimony on this topic to a House of Representatives committee.

Well, I am now a metaphorical footnote to a matter that could be of even greater consequence. On February 16, Democrats on the House Oversight and Government Reform Committee asked whether I would consider testifying on a hearing about “religious freedom” that the Republican majority had convened.

The hearing was really about the controversy over the Obama administration's decision to require religiously affiliated institutions to contract with insurance companies that would offer birth control at no cost to those employees who want it. Even though the policy doesn't require religious groups to pay for contraceptives directly, some clergy claim it violates their right of conscience.

I've testified at a lot of congressional hearings over the years. This one struck me as particularly strange. The Democrats requested two witnesses, while the Republican majority was planning on at least eight. Originally, the Republican witnesses were all men.

I was happy to learn that my co-witness would be a woman named Sandra Fluke, a third-year student at my alma mater, Georgetown Law Center, who had been speaking out against Georgetown's policy, which has the effect of denying contraceptive coverage even for women who need it for life-threatening medical reasons.

US Rep. Darrell Issa (R-CA), chair of the committee, decided that Fluke would not be allowed to testify. Around four in the afternoon the day before the hearing, Issa told the Democrats that Fluke was not “qualified” to appear as a witness and that they could have one witness only—me.

The morning of the hearing, Issa stated that I was “clearly qualified,” although he pointed out that he doesn't agree with me. He also noted that I'm not a woman. (He didn't have to tell me that.)

I rejected his offer to be the only witness for the Democrats because, frankly, I wanted a woman to testify and believed that if there was to be one witness on our side, it should be Fluke. She had a compelling story to tell, and I thought the nation should hear it. The hearing went on with no witness debunking the phony “religious freedom” claims of the Catholic hierarchy and other conservatives.

The rest is history. The male-dominated, one-sided hearing was a disaster for the GOP, and Fluke later offered her testimony to a separate hearing held by the Democrats. The articulate and poised Fluke was already attracting a lot of media attention before talk-radio bloviator Rush Limbaugh decided to launch an ignorant and vile personal attack on her. That also backfired, leading Limbaugh to offer an insincere apology in a desperate (and unsuccessful) attempt to stop dozens of advertisers from fleeing his show like the proverbial rats on a sinking ship.

The only downside to being a footnote in this saga is that I never got the opportunity to tell Congress why it should reject the religious freedom claims being made in this case. I did submit written testimony to Issa's committee, but it would have been nice to say it in person.

If current political and legal trends continue, more and more Americans may find that their healthcare hinges not on what their doctors think is best for them but what their bosses believe about religion.

This curious state of affairs stems from a deliberate attempt to redefine religious freedom in America. You read that right—religious liberty. A freedom that has historically been interpreted as an individual right of self-determination is being twisted into a means of controlling others and meddling in their most personal affairs.

RELIGIOUS LIBERTY AND THE COMING CORPORATE THEOCRACY38

Later this month, the US Supreme Court will hear oral arguments in a pair of cases concerning Americans’ access to birth control. Specifically, the high court will decide whether an employer who has a sincere religious objection to contraceptives can refuse to provide them to employees, even though the Affordable Care Act mandates otherwise.

Birth control is widely used in this country, so how did we get to this point where access to it may be imperiled for millions of Americans under a strange theory of “religious liberty”?

To answer that question, we have to go all the way back to 1990. That's the year the Supreme Court handed down a decision in a case called Employment Division v. Smith. The reaction to that ruling is a tale of good intentions gone awry.

The Smith case dealt with two Native American drug counselors who were fired from their jobs because they had used peyote, a kind of hallucinogenic cactus, in religious rituals. The two argued that they had a right, under the First Amendment's “free exercise” of religion guarantee, to engage in this activity and should not have been punished for it.

The Supreme Court disagreed. Furthermore, the court said religious groups and individuals must abide by generally applicable laws that are on their face neutral—that is, not aimed at specific religious practices. Justice Antonin Scalia warned that allowing people to pick and choose which laws they would follow on the basis of religion “would be courting anarchy.”

Some people thought this went too far. After all, some things religious people want to do are rather harmless and pose no threat to society, such as wearing religious garb or certain types of head coverings (yarmulkes and turbans, for example).

Many organizations from across the political spectrum came together to seek federal legislation that would remedy this problem. After a few years of squabbling, they worked with legislators to produce the Religious Freedom Restoration Act (RFRA). President Bill Clinton signed it into law in 1993.

RFRA requires governments to demonstrate a “compelling state interest” before infringing in a “substantial” way on anyone's religious liberty, as well as prove that it has employed the “least restrictive” means available to achieve its policy goal.

Most of the advocates for this bill didn't actually want to commit to whether this new law would have protected the drug counselors who got in trouble. Instead people bemoaned that under the high court's more restrictive definition of religious liberty, Muslim firefighters were being denied the right to wear beards in some jurisdictions and historic preservation laws were being used to tell churches they couldn't modify their architecture because of the “historical value” of the original edifice. The purpose of RFRA was to address these types of problems. It was never intended to do the things people are now saying it does, such as give secular for-profit corporations the right to meddle in the private medical choices of their employees.

RFRA was declared unconstitutional insofar as it affected state laws in 1997, but it still applies to the federal government. This is the statute that is being cited by the owners of secular businesses, like the craft store chain Hobby Lobby and Conestoga Wood Corporation, which don't want to provide their employees with certain types of contraceptives.

The heads of these companies have religious objections to using certain artificial birth control, and they argue that those personal views should be transferred to their corporate entity. Essentially, they assert that for-profit companies that are not even remotely engaged in religious activities can nevertheless claim a kind of “corporate conscience” that trumps the individual moral decision-making of their employees.

Many people thought it absurd when the Supreme Court gave a broad panoply of “free speech rights” to corporations in the Citizens United case in 2010. But corporations do “speak”—that's how they spend $1.5 million dollars on sixty-second commercials during the Super Bowl.

But to assert that corporations also have religious freedom rights is to stretch credulity to the breaking point. Who has ever noticed a corporation sitting next to them in a church pew? Does a corporation-made wooden chair robustly sing “Nearer My God to Thee” during Sunday services? Probably not.

Scalia warned of anarchy. I don't often agree with the combative justice, but he was right about that. If the Supreme Court interprets RFRA broadly, it could issue a decision allowing secular businesses to lay claim to the religious freedom rights meant for individuals. If not anarchy, that would certainly spawn a generous amount of chaos.

Let's start with some modest steps down the slippery slope. A business run by a Scientologist could claim exemption from covering mental health counseling from Scientology's nemesis, the psychiatric profession. How about Jehovah's Witness-owned corporations bowing out of coverage for surgeries because so many of them require use of whole blood products prohibited for use by members of that church?

More examples: Some Christians adhere to the doctrine that “For a husband is the head of his wife as Christ is the head of the church” (Ephesians 5:23). Let's say your boss takes this literally. Can he reject the thesis of the Equal Pay Act because that would deny him the ability to pay men—more likely to be or become husbands in charge of the family—more than women?

How about those fundamentalists who adhere to prohibitions against eating pork and shellfish found in the Book of Leviticus? Can they demand that employees sign agreements that even off the job site they will limit themselves to red meat and poultry?

It is very difficult to imagine how courts could draw the line between failing to provide contraceptive services (viewed as a mandated service in the Affordable Care Act) and running their companies along their other biblically complicit strictures.

But it gets even worse. Much ink was spilled commenting on a recent bill in Arizona that many say would have given religious fundamentalists who own businesses the right to deny services to LGBTQ people. Gov. Jan Brewer vetoed the measure, but versions of it have appeared in other states.

The justifiable fear by non-Christian religious minorities, nontheists, and members of the LGBTQ community was that this would create a gigantic loophole in local public accommodation statutes so that a hotel owner, restaurant owner, etc. could refuse to allow certain members of the public to eat at Joe's Diner or stay at the Honeymoon Haven Hotel. It would have been a backdoor to a kind of “Jim Crow 2.0,” allowing discrimination based on religious beliefs.

Lest one believe this result “unthinkable,” remember that in the 1960s some fundamentalist pastors in the Deep South preached separation of the races as a God-ordained plan. (After all, Genesis 1:4 says God separated the light from the dark.)

Arizona's bill died, but some state legislators are holding off until they see the result in the Hobby Lobby case. If the justices uphold the demanded exemption from contraceptive coverage, state politicos will find it dazzlingly simple to justify allowing all businesses to make judgments on religious beliefs, doctrinal or idiosyncratic. Religion will then trump all but the most gigantic of governmental interests.

So, anarchy could be coming to your neighborhood soon—and it will all start with birth control restrictions. On second thought, it could be worse than anarchy. If giant corporations win the right to void participation in all laws with which they disagree merely by adopting a religious patina, the result will be something worse.

In these times when it is so difficult to determine where governmental power and corporate potency separate, maybe an exercise in corporate theology would lead to something other than anarchy—a thing called “theocracy.”

So what happened in the Hobby Lobby case? Here is how I described it to a Unitarian Fellowship in Ann Arbor, Michigan, in the fall of 2014:

From the very beginning of this contraception battle, the Obama administration never wanted to require churches, seminaries, and other pervasively religious institutions of any size to cover birth control drugs. Subsequently, religiously affiliated entities like Catholic hospitals or evangelical colleges—where official dogma opposes birth control—were also exempted from having to cover contraception if they merely signed and mailed in a 737-word form in which they declared their moral opposition to such coverage. In those cases, the federal government guaranteed that women affected by their institution's “opt out” would be given free coverage from some other entity. Finally, though, for-profit secular companies headed by persons with personal religious objections to some or all birth control methods had to obey the law and provide coverage. That's the way the system was established.

Hobby Lobby is a national arts and crafts chain, whose website advertises such spiritual items as pink flamingo wind chimes and do-it-yourself garden gnome cross-stitch kits, and Conestoga Wood, a wood products and furniture company in Pennsylvania. They said: We don't want anything to do with funding some forms of contraception because we think it is immoral and in fact we think that most birth control is just another form of abortion. Hobby Lobby won its case making that argument in one federal appeals court; Conestoga Wood lost in another—this “conflict in the circuits” (as we lawyers like to put it) virtually invited the Supreme Court to resolve the matter.

The Supreme Court was asked to interpret a federal law called the Religious Freedom Restoration Act. The ACLU, for which I worked at the time, supported it; instrumentalities of the United Church of Christ supported it; and extremely conservative groups like Concerned Women for America supported it. This was a “kumbaya” moment. All of its authors thought it guaranteed that certain personal religious observances and activities could not be prohibited by governments: that a Jewish military chaplain could wear a yarmulke and that a Native American religious group could ingest an otherwise-prohibited hallucinogenic tea in important faith rituals.

But now, the companies that want these birth control exemptions insist that the statute be read to give them the right to say “no” to laws they don't happen to like—and, effectively, the collateral right to impose their own religious beliefs on others. This stretches the law beyond its intended purpose. I told the Washington Post recently that if, during the three years of drafting and moving this legislature to Bill Clinton's desk, anyone had said this law was about a crafts store telling its thousands of women employees they couldn't get insurance coverage for contraception, this coalition of support would “have exploded like a ripe watermelon hit by a shotgun blast.”39

But the Supreme Court did. It ruled that under Religious Freedom Restoration Act, even some (we'll see later if it is “all”) for-profit corporations could use their owners’ religious beliefs to refuse to provide otherwise-required insurance coverage for methods of contraception.

Within this decision are the seeds of a huge problem for all kinds of people. The dissenting justices, including unsurprisingly all three women on the Court, had warned of a kind of “parade of horribles”⁴⁰ that could come—and in fact all the evidence is that the march has started. If a closely held corporation can deny one health-related benefit, why not others? What about companies that already exist who do not believe in the concept of “equal pay”? Here is their argument from Christian scripture: “Jesus is the head of the church; the husband is the head of the family; because the husband has more responsibility in a patriarchal culture, they must get paid more.” And on and on it goes.

Some interesting issues arise from the decision itself about truth and sincerity. The “truth or falsity” of religious beliefs is not supposed to be an issue that is resolved by the courts, and I believe that is a good idea (some of you may not), but the Supreme Court said back in the 1940s that “sincerity of belief” is something that courts could explore. They did that in regard to the postal service charging something called the “I Am” movement with mail fraud for raising funds based on a belief about visiting saints in multiple layers of heaven, which the founders of the group didn't even believe was true.⁴¹

In Hobby Lobby, the argument used was that requiring coverage of four specific methods of contraception (out of twenty) violated its “conscience” because those four were abortion-inducing. That is more certainly “junk science,” because the generally accepted view of how IUDs and “morning-after” pills work is that they prevent fertilization of egg by sperm, thus no “conception” in the first place. But you could argue that even if it is bad science, it is still a “religious” belief. No one ever questioned the sincerity of the claim—but in my judgment the administration should have.

If you want to be “purer than Caesar's wife” then you really need to avoid touching that which you think is immoral or sinful. By that test, Hobby Lobby is, in my view, insincere. It won't offer contraceptive choice to employees but it does allow a range of retirement plan investment choices to those same employees and some of the vehicles you can choose include investing in the very same pharmaceutical companies that make the contraceptives Hobby Lobby won't cover. And, before there was an Affordable Care Act, the company used to cover the very same contraceptives with which it now disapproves, claiming it wasn't aware that these forms of contraception were abortifacients—even though this was a widely promoted claim by evangelical fundamentalists for decades earlier. Then there is the small problem that they purchase hundreds of millions of dollars’ worth of goods made in China, which still essentially has a forced-abortion policy after the birth of your first child. And then, finally, it is completely clear that if you make the most effective forms of contraception unavailable, it will lead to about 30 percent more unplanned pregnancies, and half of them will end in abortion. So if you are genuinely worried about abortion, you, Hobby Lobby, will have a lot of explaining to do.

But by now most of you know that medical issues are just the tip of the iceberg. There is absolutely nothing in the majority opinion of the Court that suggests that religious claims will be summarily dismissed when someone wants to have veto power over some federal law they don't want to follow, unless it is a claim about not paying taxes or engaging in race discrimination. Everything else is on the table, although Justice Kennedy wrote a separate opinion suggesting that he personally would be more cautious in supporting broad religious vetoes. How cautious? We don't know. What about motel chains that might decide not to rent rooms to same-gender couples—or unmarried couples (strike that: there would be very few rentals in that case)?

So what to do? Everything's possible. There is already a bill called “Not My Boss's Business,” which seeks to get around the Supreme Court decision. It was filibustered in the summer of 2014 and the 56 to 43 vote was insufficient to stop debate through a procedure called “invoking cloture,” which requires sixty votes. Even if the bill had passed the Senate, House Speaker John Boehner—or “Mr. Weepy” as he is sometimes called—would have never allowed the House to vote on it.42

But whatever the fate of a piece of legislation, there are other avenues to express opposition. A clergy member of the United Church of Christ out in Tulsa, Oklahoma (home base of Hobby Lobby), has started handing out condoms at their flagship store's parking lot.⁴³ Other guerilla theater is going on it some stores themselves, including customers rearranging displays so that they read “I want my birth control.”⁴⁴

There are now roughly twenty-three states that have their own RFRAs. A major national fervor arose over the meaning of Indiana's version in mid-2015. Indiana's RFRA was clearly designed (per the statements of its sponsors) to restrict LGBT rights. Marriage equality is the law in Indiana, thanks to a federal court ruling, and some legislators wanted to find a way to make sure that florists, bakers, photographers, hoteliers, etc. would not have to serve same-sex couples.⁴⁵

As originally written, the Indiana RFRA would have had the effect of nullifying laws that prohibit discrimination against LGBT residents, which exists in a handful of Indiana cities and counties. The so-called “fix” of the bill was a very modest baby step in the right direction—but it still allows discriminatory treatment in the many Hoosier state communities that don't have such ordinances.

When all is said and done, the difference between the purpose of the federal RFRA and this new wave of bills is enormous. The new bills seek to deliberately hurt people; they are occurring in anticipation of a looming Supreme Court decision that many analysts believe will extend marriage equality nationwide.

In the midst of this entire outcry came the owners of Memories Pizza in Walkerton, Indiana. They told the media that they would serve gays in their pizzeria but would not cater a same-sex wedding. Under the “fix” signed into law by Governor Mike Pence, they are still allowed to act like bigots because there is no law protecting LGBT people from discrimination in Walkerton.

As most of you know, I've been to both law school and seminary. Even this specialized training fails to tell me by what stretch of the imagination one can justify serving two slices of pepperoni pizza to a couple but not providing two hundred slices for their wedding.

If someone does have an idiosyncratic religious reason for treating these events differently, in my view it would be so trivial a piece of moral detritus that it doesn't deserve public recognition or approval.

 

CANON LAW/ABUSE BY PRIESTS

Can things get even worse? In December 2014, attorneys for the Catholic archdiocese of Fort Wayne-South Bend, Indiana, actually argued that civil courts had no jurisdiction to consider gender discrimination claims against churches because courts will demolish “religious freedom” if they have the right to tell religious organizations what to do. This did not fly.46 However, I outlined some more conceivable claims for the July 2012 annual conference of SNAP (the Survivors Network of those Abused by Priests).

It's always nice to be in Chicago in late July. There's only a 20 to 25 percent chance of snow. I'm honored to have been asked to come here this morning. In writing to a friend on Thursday, I mentioned that I would be here but then added how sad it felt to be speaking to a group organized around atrocities that should not have occurred in the first place, actions that were taken, then ignored, then covered up by the one institution above all others that claims to represent the highest ethical values emanating from the literal creator of the universe.

In my view, the leadership of the Catholic Church in America—with rare exception—has no moral authority to speak on matters of women's rights or human sexuality. If ever it had this authority, it has abandoned it. It abandoned it when, as an institution, much of the Church decided—in situation after situation—that it was above the criminal and civil laws that the rest of us have to follow. For years, under the misleading and self-serving cloak of “religious freedom,” the Church has labored to relieve itself of the legal rules that apply to everybody and instead to apply its own rules whenever it finds itself in a conflict. I'm going to talk about a number of specific examples of this behavior this morning, but they are all variations on a single theme: that most of the Catholic leadership today considers the Church to be above secular law—and they claim to “proof text” that from both the Bible and the Constitution.

You may recall news coverage from earlier this summer about the Conference of Catholic Bishops’ Fortnight for Freedom. The Bishops took issue with a set of proposed regulations under the Obama Administration's Affordable Care Act, just recently upheld in part by the Supreme Court. I'm not going to explain all the convoluted changes these insurance regulations have gone through because I think it is simply wrong to put people into a coma this soon after breakfast. The bottom line is this: The Bishops were horrified that the Obama administration had proposed that all employers be required to provide health insurance to their employees, which would include coverage for contraception. There would be a religious exemption only for local churches and other religious entities like seminaries. This meant that large Catholic hospitals and educational institutions had to provide this coverage.

You may wonder why I'm spending time with this; this is, after all, not the Planned Parenthood convention. I hope by the end of these remarks you'll see that this current healthcare fight is the tip of a gigantic, Titanic-killing iceberg that threatens freedom of conscience and human dignity.

What the Conference of Catholic Bishops demands is an exception excluding any institution that has some element of Catholic ownership. On the surface, that clearly includes the big hospitals and educational institutions—but, under the Bishops’ reasoning, it would also extend to any business owned by a Catholic person.

The Bishops have consistently justified this demand in terms of “religious liberty.” They claim that if any Catholic business owner is required to contribute to a health insurance plan that offers contraception coverage—even to non-Catholic employees—the government will have violated his religious liberty. Not only that, the Bishops have the audacity to claim that it will violate the “freedom” of the non-Catholic men and women who are denied coverage. Think about these words, taken from the Bishops’ latest official objection to the proposed regulations: “[A]s a result [of the insurance mandate], women will have less freedom, not more. They will not have the freedom to decline such coverage.”47 This is epic, Orwellian doublespeak, and it conceals the true nature of the Bishops’ demands.

The fact that a product is available doesn't mean anybody has to use it—I passed up a pastry just this morning. In fact, the original regulation contained a provision that any religious organization required to provide coverage could also put up a notice to their employees that said something like, “We offer birth control, but we think it is immoral to use it—and so does God.”

The battle the Bishops are waging against coverage of contraception in healthcare plans is not about “religious liberty.” That claim is fraudulent.

Liberty does not mean being given state sanction to force your own ideas—religious or otherwise—on other people. It does not mean being given a free pass from laws you don't like.

The French observer of eighteenth-century America Alexis De Tocqueville famously quipped that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one,”48 and indeed the Bishops are already fighting this issue in the courts as well as in the presses. They have met with only limited success.

The debate over the insurance mandate is recent and highly visible, but it is not the only area where the Church has attempted to hold itself to different standards. As I said at the beginning, this episode just shows how the Catholic leadership has abdicated legal accountability and, with it, moral authority. Before I get to their shameful behavior on human sexuality, I want to highlight some other threads in the pattern of evasion and irresponsibility.

There are whole fields of civil law from which the Church would like to be exempt, preferring to use its own internal canon law instead. They have been trying for decades to get courts to let them do this, and it may surprise you to hear that they have recently met with some success. In Hosanna-Tabor, a unanimous Supreme Court case decided just this January, the Conference of Catholic Bishops was part of a coalition that convinced the Court to broaden the reach of something called the “ministerial exception.” This is an entirely “judge-created” encrustation on to the 1964 Civil Rights Act that otherwise would require that there could be no discrimination in hiring people for church jobs. These judges (and frankly I agree with this in principle) thought it ludicrous to force a synagogue to hire a Wiccan priestess as its new rabbi. For ministers of a church you could prefer those of the same religious persuasion. But now the “exception” has been allowed to take a much bigger bite. After January's decision, any personnel decision made by a church about any employee who performed any kind of “religious function” will be exempt from the prohibition against employment discrimination. The Bishops took an incredibly broad view of what a “religious function” was; as long as the religious employer took care to assign the employee any small “religious” task, the relationship between the church and the employee would be immune from those labor laws that otherwise bar discriminatory hiring or firing. Now, so long as a church labels the custodian's duties a “ministry of cleanliness,” it is free to ignore laws against employment discrimination. So even if that custodian is really fired not because of some religious disagreement; if he is discharged for racial reasons, for example, having been declared a “minister” under some real or imagined church doctrine means he can't go to the Equal Employment Opportunity Commission or the federal courts for redress. Nine votes out of nine Supreme Court members said this.

As Law Professor Marci Hamilton—whom many of you know as a staunch protector of the rights of abused and exploited children—has pointed out, the holding in Hosanna-Tabor could have been much worse; the ministerial exception does not bar cases against churches—at least so far—other than for employment discrimination. But I'm sure you can see why the Bishops were so eager to win this case. The lawsuits brought by victims of sexual abuse by priests are often based on negligent supervision or hiring by a bishop. Although negligence in hiring and supervision is different from a violation of employment law, I believe the Church is building up its case to be exempted from responsibility for negligence as well. In fact, they have already made that argument in a number of state courts, with mixed success. Some state courts have granted them the exemption, but others have refused when it comes to allegations of abuse of children. For instance, courts in Maine recognize the ministerial exception as applied to negligent supervision of clergy by a bishop, but do not allow any immunity when there is a particularly sensitive individual relationship between the church and the alleged victim—such as that between a priest and a youth.

But forget the legal details—the point this morning is that the Church made the argument. Its lawyers have stood up in court, time after time, and said, with tolerably straight faces, “We are not responsible. Yes, our bishop kept on a priest he should have known was a pedophile, and, yes, he moved the priest from parish to parish, endangering children and failing to report accusations of abuse to the police. That doesn't matter; we're the Church, and the normal rules don't apply to us.” Are these the actions of a Church leadership with the moral authority to lecture us on human sexuality? No.

In other areas the Church has not yet convinced the courts to throw up their hands and let the Bishops set the rules. For instance, the Church has tried to get courts to use canon law, rather than common law, to settle disputes of property ownership. They've dragged the same theory into bankruptcy court. For the most part, courts have declined these invitations.

In family law, as well, courts have resisted efforts by Catholic individuals involved in divorces to apply canon law in resolving spousal support and child custody disputes. There was an interesting case from Ohio a few years ago in which Bai MacFarlane, a Catholic divorcée, tried to get a family law court to modify her child support obligations downward. Although Mrs. MacFarlane had a mechanical engineering degree, she believed that Catholic canon law required to her to be a stay-at-home mom and home school her children. Mrs. MacFarlane argued before her family law judge, first, that she should be allowed to interrogate her ex-husband on the stand on Catholic canon law to prove that he shared her beliefs. Second, she proclaimed that her alleged obligations under canon law merited the child support increase she requested. Neither the trial judge nor the Court of Appeals of Ohio would stand for such a thing. Although Mrs. MacFarlane did have her own lawyer, she also received considerable support from her local Catholic diocese.49

Mrs. MacFarlane lost her case, but she went on to start an organization that advocates for “covenant marriages”—that is, marriages in which the usual no-fault divorce rules do not apply, and in which couples are held to religious standards to which they agree at the beginning of the marriage—religious standards that they expect civil courts to apply in the event of a dissolution of that marriage. Although the Conference of Catholic Bishops has not officially endorsed covenant marriage legislation, individual bishops have spoken strongly in favor of it. Three states have officially recognized covenant marriages, showing that the Church has gained at least some traction on this issue in the state legislatures. Bills have been introduced in many other states.

The Church has made significant inroads with legislatures on another issue—exemption from otherwise mandatory reporting of probable sex offenses against children when a priest learns of such abuse in the confession booth. In no less than twenty-nine states, clergy are permitted an exemption from laws requiring most service professionals to report suspected abuse or neglect of a child. Five other statutes allow the exemption but do require clergy to report when there is a high likelihood of abuse or neglect. Should we accept the Church leadership's moralizing on issues of sex when they have lobbied their way into being excused from reporting sexual abuse against children? I think you know my answer.

As you also know, it often takes decades for a survivor of sexual abuse to gain the strength and courage to speak out. Because of this, the perpetrators of the abuse can often hide behind state statutes of limitations. Many states have begun to expand the time period during which you can bring a claim of sexual abuse, but the Catholic Bishops have, predictably, opposed these moves very forcefully. In some cases, they have justified this opposition simply on the grounds that the number of suits that would result would bankrupt certain dioceses. Think about that for a minute, as a justification: “State legislature, we don't want you to expand the statute of limitations because so many people will sue us we'll go straight out of business”—and most of them are legitimate suits! Patrick Schiltz, a lawyer (now federal judge) who defended Catholic dioceses in over five hundred lawsuits, concluded that fewer than ten were based on false accusations. That's two percent. This estimate was backed up by a 2004 report that was commissioned by none other than the Conference of Catholic Bishops. Given that, I can understand why the Church would obstruct attempts to let more victims into court. But that does not make it right.

I'll just add that the Bishops’ fears of a tidal wave of lawsuits are not actually unreasonable. When California passed a statute providing a one-year window in which people could bring older sex abuse suits against the church, there were over 550 claims. So, naturally, the Catholic Bishops have been active in lobbying against extensions of the statute of limitations in Massachusetts, New York, and New Jersey, and have managed to defeat “window” legislation in Ohio, Maryland, Illinois, Washington, DC, New York, and Colorado. Again, are these the actions of a Church leadership with the moral authority to lecture us on human sexuality? No.

In Colorado, Archbishop Charles Chaput led the efforts to defeat legislation that would have provided a window for sex abuse victims to bring old cases to court. He instructed his priests to raise the issue during Mass and to distribute lobbying postcards, which they did—including in the Catholic congregation attended by the Senate president, who had introduced the bill. Archbishop Chaput is also interesting because he has since been transferred to the Archdiocese of Philadelphia—the church unit in which Monsignor William Lynn has now been convicted of endangering a child by covering up for a clergy molester.50 You have probably heard that Monsignor Lynn was, just this week, sentenced to three to six years in prison in the first case of its kind anywhere in the United States.⁵¹ This is the pattern of leadership of the Catholic Church: Constant denial of legal responsibility, constant efforts to shield themselves from liability, constant efforts to place themselves above the law. How can these men claim to have moral authority over issues of human sexuality when they have so loudly rejected responsibility for their own misconduct? They cannot, and they do not.

Bill Donohue, the president of the Catholic League for Religious and Civil Rights, has actually argued, with a straight face, that the Church does not have a problem with sex abuse by the clergy, because, in his notorious words, “[T]hey weren't children, and they weren't raped.”52 Think about that statement. He then went on to blame the abuse on homosexuality. This is, by the way, the same man who claimed that kissing and inappropriate sexual talk is not abuse, and in the same interview called Irish accusers of Catholic priests “gold diggers.” Now, in fairness to the Conference of Catholic Bishops, the Catholic League is not an official organ of the church. Thank goodness for small favors.

I want to bring this “corporate conscience” claim full circle as I close here because there is an astounding disconnect that you may have already figured out about the disparate way the Catholic Bishops understand the reach of their moral responsibility. In the case of the birth control mandate, even to refer an employee to someone else who will give her insurance coverage for a procedure or a treatment as a way to space children in a family is wrong. Church officials would have us believe such a simple act condones what they consider a sin against God. Indeed, this gossamer-thin analysis is so attenuated that a connection it is nearly invisible to most of us. But, consider the chain of events in so many of the cases that have had such a profound impact on your lives and the lives of your families as children and today. In the abuse cases, these same church officials go out of their way to explain how they were unconnected to a “sin”; how they can't be held responsible for the actions of others, even those they supervised. They have gone out of their way to nitpick reasons why they can wash the blood from their hands. They are looking for excuse after excuse after excuse to exonerate their own complicity in what traditional Catholics know is “sin” and which moral persons of any or no religious persuasion recognize as a crime against the deepest understanding of intimacy and of human sexuality and a violation of the very nature of the human spirit.

No matter how clever the lawyer, no matter how articulate the prelate, they are all apologists for what is to most of us unimaginable distortions of the very idea of liberty and freedom. If I leave you with one message, it is that many of us, from a variety of religious traditions, know that we have a moral duty to prevent these distorted claims from successfully becoming a part of American judicial philosophy.

There are several groups around the country today raising funds to stop “sharia,” Islamic holy law, from being used in America. Oklahoma's residents recently passed an initiative on this matter. There are plenty of things to worry about these days—sharia is not one of them. Ironically, one of them is the effort to turn current Catholic religious doctrine into a public and legal policy that will have an effect on all Americans, whether they like it or not.