Category Archives: Religious Liberty

Religion, Vouchers And The Court

I was sitting at my desk Wednesday when the news alert came across my screen. The New York Times was reporting on the most recent decisions being handed down the Supreme Court.

I will comment on the truly offensive decision in Little Sisters of the Poor tomorrow. Today, I want to address the decision allowing religious schools to discriminate in employment.

Here’s the lede:

The Supreme Court ruled on Wednesday that federal employment discrimination laws do not apply to teachers whose duties include instruction in religion at schools run by churches.

The vote was 7 to 2, with Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The court has been active in considering the relationship between church and state, generally siding with religious groups. It has ruled in recent years that a state must let a church participate in a government aid program, that a war memorial in the shape of a cross could remain on public property and that town boards may start their meetings with sectarian prayers. Last week, it said state programs that provide scholarships to students in private schools may not exclude religious schools.

The new cases considered another aspect of the church-and-state divide — what role the government can play in regulating religious institutions.

I have my reservations about several of these cases–not to mention my suspicions about the religious and ideological perspectives of the more conservative Justices–but I actually don’t disagree with this one.

What I do disagree with–strongly–is those “state programs that provide scholarships to students in private schools.”

I have written before about voucher programs. Not only have I blogged about them, but I’ve written academic articles explaining the multiple reasons these programs were ill-conceived to begin with, and  pointing out that–in addition to the substantial harms they have caused– they have failed to deliver the benefits they promised (they now have been functioning long enough to permit assessment).

They are also a scam. 

How wasteful/counterproductive is our state’s largesse to private (mostly religious) schools? Let me count the ways: the promised improvement in student achievement did not materialize; badly-needed funds are being diverted from the public schools that most Hoosier children still attend; taxpayers are subsidizing discrimination (schools getting millions of dollars are discharging teachers and counselors for the “sin” of being in same-sex marriages); and there are no requirements that recipients of vouchers teach civics.

In addition to all that, lack of oversight has facilitated a massive rip-off of Hoosier taxpayers. Doug Masson wrote a scathing summary of that problem last year after Chalkbeat reported on fraudulently inflated enrollment numbers at Indiana’s then-virtual schools.

Doug also succinctly summed up the actual motives of voucher supporters. The real impetus for voucher programs wasn’t the purported one: to allow poor children to escape failing schools. It was–and remains–threefold: to weaken teacher’s unions, subsidize religious institutions, and redirect public education money to cronies.

Also, a reminder: vouchers do not improve educational outcomes. I get so worked up about this because the traditional public school is an important part of what ties a community together — part of what turns a collection of individuals into a community. And community feels a little tough to come by these days. We shouldn’t be actively eroding it.

In Indiana, far from excluding religious schools from the nation’s largest voucher program, well over 90% of the schools receiving vouchers paid for by our tax dollars are religious. Some of those schools allow religious dogma to influence what they teach– creationism rather than science, for example– and a number discriminate against teachers and students on the basis of their theologies.

So here’s where I agree with the Court: if your church or mosque or synagogue wants to ensure the “purity” of your doctrine, fine. The Free Exercise Clause–as I read it, and as the Court has now read it–says okay. You don’t have to hire or retain employees who violate your religious tenets.

But as I read the Establishment Clause, your religious institution doesn’t get to do those things with my tax dollars.

So the Catholic Archdiocese gets to exclude trans kids from Catholic schools, and fire excellent teachers and counselors for the “sin” of same-sex marriage. Fine–but not with my tax dollars.

The case that was wrongly decided was Zelman versus Simmons-Harris. In that intellectually dishonest 2002 ruling, the Court pretended that the tax dollars going to vouchers were really being paid to parents, who would then exercise “independent choice.” That has never been the case.

There is now a substantial body of research confirming that vouchers are bleeding resources from our public schools (without improving student performance), eroding civic identity, benefitting religions in violation of the Establishment Clause, and– as a bonus– crippling teacher’s unions.

I’m all for letting churches and religious schools practice what they preach. However, I am adamantly opposed to having taxpayers foot the bill.

 

 

 

Good Religion, Bad Religion

There’s a yiddish word that describes today’s post: chutzpah. 

Chutzpah is gall of the “how dare she” variety. It’s sometimes illustrated by an anecdote about a person who kills his mother and father and then throws himself on the mercy of the court because he’s an orphan.

Today’s post is about Christianity, and the reason I acknowledge my own chutzpah is because I am neither a Christian nor a believer. I come from a tradition that emphasizes behavior over belief–works over piety–and has co-existed pretty comfortably with science and secularism. (Minorities tend to flourish in more open, secular societies.)

What prompted this post was an article I came across in–of all places–Marketwatch, asking  why approximately half of Catholics and a majority of Evangelicals continue to support Donald Trump. The basic answer to that question, according to the article, is continued resentment of the First Amendment’s separation of Church and State.

To this day, there are many people who would like to put religion back into the center of public and political life. This is presumably what U.S. Attorney General William Barr, a deeply conservative Catholic, meant when he denounced “secularists” for launching an “assault on religion and traditional values.”

Of course, a preference for putting “religion” back in the public sphere raises a question that becomes more and more relevant as the country diversifies: whose religion? 

The article also referenced the relationship between a certain kind of Christianity and racism. It noted that Protestants had been supportive of Separation of Church and State so long as they remained culturally and racially dominant.

This changed after the Civil Rights movements in the 1960s, which alarmed many white Christians, especially in the southern states. Today, evangelicals, like Catholic conservatives, are among President Donald Trump’s most ardent supporters. They, too, believe that family and faith are under siege from liberals and secularists…

The attempt by contemporary Catholic conservatives and Protestant evangelicals to infuse politics with their religious beliefs obviously runs counter to the ideas of the French Revolution, which sought to uphold freedom from religion, but also of the American Revolution, which instituted freedom of religion. Both groups are targeting the carefully erected barriers between church and state.

This is dangerous, not only because it fosters intolerance, but also because it challenges, in the spirit of de Maistre, the idea that political argument should be based on human reason.

Once political conflicts become clashes of faith, compromise becomes impossible. A believer cannot bargain over a sacred principle.

You can’t argue with God. (Or your version of God.)

The article reminded me of Robert Jones book The End of White Christian America, which probed the anxieties–and rage– of white Christian men, as the racial, religious, and cultural landscape continues to change in ways that erode their previously privileged position.

When I was researching my 2007 book God and Country, I came across the very useful categorization of the nation’s founders into “Planting Fathers” and “Founding Fathers.” The Puritans were Planters. They came to the New World for “religious liberty,” which they defined as freedom to worship the right God in the right church and establish a government that would require their neighbors to do likewise. One hundred and fifty years later, the Founders who drafted the Constitution and Bill of Rights defined liberty very differently–as the right to follow one’s own beliefs, free of government interference.

What had intervened was the Enlightenment.

Our legal framework may be based on Enlightenment understandings of liberty and the role of government,  but America is still home to lots of Puritans who reject that understanding– along with the Enlightenment’s emphasis on science, evidence and empiricism.

The continuing culture war between our contemporary Puritans, secularists, and adherents of  non-fundamentalist religions raises some important–and too often neglected–questions: what good is religion? do modern societies still need it? what separates “good” religions from harmful ones? what’s the difference between a religion and a cult?

My youngest son has suggested a useful distinction between good and bad theologies: If a religion makes you struggle with the hard questions–what does it mean to be honorable, to act humanely, to treat others as we would want to be treated, etc.–it’s probably good.

If, instead of helping you confront the questions, it provides you with the answers, it’s bad.

To which I will add: if your religion leads you to support a leader whose behavior is contrary to everything you profess to believe because he promises to erase the line between Church and State and restore White Christian male privilege, you are a flawed person embracing a deeply flawed theology.

 

 

Frame Me A Story

When I think about what I learned in law school all those years ago, it really boils down to one truism: he who frames the issue wins the debate.

Okay, that might be a wee bit of overstatement, but a recent column by Linda Greenhouse— one of the most savvy reporters covering the Supreme Court–reminded me just how important framing is, not just in litigation but also in politics.

Greenhouse was writing about two “religious liberty” cases on the Court’s docket this term. As she noted, these cases involve a constitutional gray area; we know that the  Free Exercise Clause requires government to give religious believers room to practice their faith without undue interference. Courts must decide how much room, under what circumstances, and what interference is “undue.”

The cases the Justices must decide this term–Little Sisters of the Poor v. Pennsylvania and Our Lady of Guadalupe School v. Morrissey-Berru— both lend themselves to what Greenhouse calls “alternative narrative” packaging. Religious organizations have been in court ever since the Affordable Care Act was passed, protesting the Act’s requirement that health insurers cover contraception for employees that want it.

Which gets us to posturing. Despite Little Sisters’ name on one of the lawsuits, it has virtually no interest in the decision.

That’s because the order’s lay employees, not all of whom are Catholic, are covered by a church-sponsored insurer, the Christian Brothers Trust, which the government conceded in earlier litigation can’t be penalized for its refusal to provide the disputed contraception coverage.

In other words, the Little Sisters have already won. The actual dispute before the court is between Pennsylvania and New Jersey, on one side, and the Trump administration on the other. The states sued to block the administration’s rule that lifts the contraception mandate entirely from any employer — profit, nonprofit, privately held or publicly traded — with a religious objection to covering birth control, as well as from any privately held employer that claims a “moral” objection.

The actual issue raised by the states is whether the Trump administration complied with the Administrative Procedure Act when it issued the rules.

But that hardly comes through from headlines like “The Endless War on the Little Sisters of the Poor” on a Wall Street Journal op-ed by Helen Alvaré….. And Ramesh Ponnuru’s Bloomberg opinion column declaring that “The Left Is at War With the Little Sisters of the Poor” concluded by demanding, “Leave the nuns alone.”

Talk about a compelling story line. Except that it isn’t accurate, not by a long shot. On the table when the Obama administration left office was a proposed accommodation under which religious nonprofits would not have to do anything — hands off, completely, nothing to sign, no forms to fill out — to have the insurer, with reimbursement by the government, provide “seamless” contraception coverage. That was the Obama administration’s one nonnegotiable requirement. (The administration didn’t want women to have to shop for a stand-alone birth-control insurance policy.)

In other words, the nuns and all other religious employers, were not being asked to “pay for birth control,” far from it, and would have been untouched by the bureaucratic hand. But that still wasn’t sufficient, the religious employers said, to avoid their complicity in the sin of contraception because their insurance policy would still provide the link, however attenuated, between their female employees and contraception.

The court’s second religion case involves the “ministerial exception,” a doctrine that exempts churches from having to follow federal nondiscrimination laws when it comes to employees whose jobs are essentially religious. (As I tell my students, that means that a synagogue can’t be required to hire a Baptist as Rabbi, or a Baptist Church compelled to employ an atheist Sunday school teacher.)

Two Catholic schools in California dismissed fifth-grade teachers, each of whom taught fifth-grade subjects– including, twice a week, a class taught from a religious workbook. One was fired after she developed breast cancer and needed time off for treatment, who sued under the Americans With Disabilities Act. The other woman alleged age discrimination.

Both schools claim that the ministerial exception applies, and federal anti-discrimination laws don’t.

During last week’s argument, the justices and lawyers jousted over hypothetical questions: Would the exception apply to a janitor? To a football coach? To a football coach who led the team in prayer? An employee at a soup kitchen who leads grace before meals?

The case is being framed as the right of religious schools to select religion teachers. The actual issue is whether a teacher who teaches religion for two hours a week, along with math, social studies, English and everything else, is a “religion teacher.”

Here’s the real question raised by both of these cases: do Americans employed by religious employers forfeit their Constitutional rights?

Would framing these cases accurately win the debate?

 

Scalia Was Right

Well, that’s a headline I never thought I’d write!

Not that I always disagreed with Antonin Scalia; he was pretty good on free speech, for example. But overall, I found his jurisprudence intellectually dishonest, and his “originalism” disingenuous–especially because he was smart enough to know it.

What makes the headline particularly ironic, is the fact that my initial reaction to the decision he authored in Employment Division v. Smith was that it was wrong. It was certainly widely criticized.

In that case, members of a Native American Church, who were counselors at a private drug rehabilitation clinic, were fired because they had used peyote–possession of which was a crime under Oregon law– as part of a religious ceremony.  The counselors filed a claim for unemployment compensation with the state, but the claim was denied because their dismissal was deemed work-related “misconduct.” The Oregon Courts of Appeals reversed, finding the denial an infringement of their religious liberty, and the Oregon Supreme Court agreed. The state then appealed to the Supreme Court, arguing that denying the unemployment benefits was proper because possession of peyote was a crime.

Scalia ruled that the denial of unemployment benefits was proper because the law against peyote use was a “law of general application.” That is, it hadn’t been passed as an effort to target Native American religious practices, but as part of a legislative effort to combat drug abuse generally. The fact that a law of general application inadvertently hindered a religious practice might be unfortunate, but that didn’t make its enforcement unconstitutional.

Because the law’s application in this case so obviously–and in the opinion of most people, unnecessarily– punished a longstanding religious ritual, the decision generated considerable outrage, and if memory serves, prompted passage of the Religious Freedom Restoration Act, requiring the Courts to apply a more rigorous judicial standard in such cases. (This was not the infamous Indiana version.)

On reflection, however, I came to the conclusion that Scalia was right.

Here’s the issue: When should “sincerely held religious beliefs” justify ignoring laws meant to protect or improve the citizenry? To take an obvious extreme, we have laws against murdering babies; should the ritual sacrifice of her newborn in accordance with a sincere religious belief exempt the parent from punishment?

If not, when should religious belief trump civil law?

We are once again having this debate, as a result of the tension between laws intended to ensure civic equality and religious dogmas that label certain others “sinners.”

The Washington Post recently reported on one such conflict.

The Supreme Court on Monday added a major case to its docket this fall to decide who prevails when a group’s religious beliefs conflict with a city’s attempt to eliminate discrimination.

The justices will take up a legal fight from Philadelphia, where city officials ended a contract to provide foster care services with Catholic Social Services because the agency said it would not accept applications from same-sex couples who want to take care of children. The case will be heard in the term that begins in October.

The Third District Court of Appeals ruled for the city, holding that it was not targeting the Catholic agency in enforcing its policy prohibiting the city from doing business with entities that discriminate.

The case is being seen as a major test of whether the Court will reconsider precedents, especially the precedent established in Employment Division v. Smith, to the effect that generally applicable laws that don’t intentionally target religious groups are constitutionally enforceable.

It will be interesting to see the reaction of those politicians and pundits who continue to laud Scalia for his convoluted opinions privileging religion as “tradition.”

But then, for all those who counted themselves Scalia fans, it was all and always about results–not consistency.

 

 

 

The Plutocrats And The Theocrats

As if ALEC wasn’t enough of a threat to citizens of red states, we now have “Project Blitz,” an effort patterned on ALEC’s all-too-successful formula.

The first thing to know about Project Blitz is that it was launched in 2015 by the Congressional Prayer Caucus Foundation, the National Legal Foundation, and Wallbuilders. The latter is an organization founded by David Barton, the Republican operative and discredited historian who rejects the separation of church and state, claiming that the United States was founded as a Christian nation.

I had not previously heard of Fred Clarkson, who has evidently been studying the Christian right for decades, but he came into possession of Project Blitz’s 116-page manual of model legislation in early 2018.  Clarkson says that Project Blitz  is to Christian nationalists what ALEC is to corporate plutocrats–a number of the extreme anti-choice, anti-gay and pro-Christianity measures that have emerged from legislative chambers over the past couple of years came from Project Blitz’s package of twenty “model” bills.

The bills are seemingly unrelated and range widely in content—from requiring public schools to display the national motto, “In God We Trust” (IGWT); to legalizing discrimination against LGBTQ people; to religious exemptions regarding women’s reproductive health. The model bills, the legislative strategy and the talking points reflect the theocratic vision that’s animated a meaningful portion of the Christian Right for some time. In the context of Project Blitz’s 116-page playbook, however, they also reveal a sophisticated level of coordination and strategizing that echoes the American Legislative Exchange Council (ALEC), which infamously networks probusiness state legislators, drafts sample legislation, and shares legislative ideas and strategies.

A study conducted by Americans United for Separation of Church and State counted 74 bills considered by state legislatures in 2018 that echoed the “model legislation” in the Project Blitz handbook. All are intended to erode the First Amendment’s separation of church and state.

There are bills promoting “In God We Trust” on license plates and in public schools. (Here in Indiana, a bill to that effect is being considered by the legislature this year.) Then there are the “Christian heritage” bills, and those emphasizing “the importance of the Bible in history” to promote the notion that the U.S. is a Christian nation.

The measures which Project Blitz organizers admit might be “hotly contested,” are those seeking to empower licensed professionals to deny health care and other services based on religious beliefs and those that would allow adoption agencies to reject adoptive families on religious grounds.

At least 10 states have laws that allow discrimination by child welfare agencies, most of which have been passed since Project Blitz launched in 2015, and–surprise!– similar measures have been introduced in Indiana.  (I’ve previously blogged about a couple of them.)

Project Blitz–and the Trump Administration–have been described as the “death rattle” of White Christian nationalism. In 2016, Robert P. Jones wrote“The End of White Christian America,” detailing the demographic inevitability of that end.(The linked article has the graphs, and an interview with Jones.)

Project Blitz is part of the Christian Right’s  hysterical reaction to demographic reality, but recognizing that fact doesn’t make its efforts less worrisome–or less unAmerican. Just as ALEC has managed to delay regulatory reforms that would hinder the plutocracy, the legislation supported by Project Blitz would both delay the inevitable and cause considerable damage in the interim.

It’s also worth noting that today’s GOP is almost entirely composed of White Christian nationalists. In the states where Republicans hold sway, that “death rattle” is likely to be prolonged, dangerous and very, very ugly.