Recently in Church-State Category

David Brody, tipster of the religious right, sent out an alert yesterday that thunderclouds are gathering over President Obama's first big judicial nomination--federal district judge David F. Hamilton of Indiana to the 7th Circuit Court of Appeals. The source of the problem is a 2005 ruling (Hinricks v. Bosma) in which Hamilton turned thumbs down on the pervasively sectarian (i.e. Christian) prayers with which the Indiana House of Representatives had taken to opening its sessions. As in:

To summarize, the evidence shows that the official prayers offered to open sessions of the Indiana House of Representatives repeatedly and consistently advance the beliefs that define the Christian religion: the resurrection and divinity of Jesus of Nazareth. The Establishment Clause "means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). 'The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.'" County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 605 (1989), quoting Larson v. Valente, 456 U.S. 228, 244 (1982). The sectarian content of the substantial majority of official prayers in the Indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian legislative prayers in Marsh v. Chambers, 463 U.S. 783 (1983). Plaintiffs have standing as Indiana taxpayers to bring their claims, and they are entitled to declaratory and injunctive relief. This relief will not prohibit the House from opening its session with prayers if it chooses to do so, but will require that any official prayers be inclusive and non-sectarian, and not advance one particular religion.

Naturally, this is being taken as evidence that Hamilton, the son and grandson of Methodist ministers, is anti-Christian. (Dan Nejfeld's got a good account over at Bold Faith Type.)

In the event, a panel of the 7th Circuit overturned Judge Hamilton's decision, not on its merits but under the U.S. Supreme Court's 2007 Hein decision, which held that taxpayers have no standing to challenge government action under the Establishment Clause unless the action involves the outlay of government funds. (Follow the legal trail here.) Hein would, as I understand it, prevent (for example) evangelical Christians from challenging the Dharma County (CA) Commission's resolution acknowledging the spiritual lordship of His Holiness the Dalai Lama because the resolution involved no expenditure of county funds. (Uh, no, there is no Dharma County in California.) This seems perverse.

Judge Hamilton enjoys the backing of both Indiana senators, and my guess is that, barring some other legal casus belli, his nomination will not enounter serious opposition. But the Hinrichs case points to the increasingly problematic issue of prayers at government events. Once upon a time, these were understood to be exercises in inclusion--and over the years that evolved such that the canopy was unfurled to cover anyone who didn't feel offended by the national motto, In God We Trust. (Of course, some do feel so offended.) But more recently, as evangelicalism has returned to the main arteries of the culture, the prayers have come to be used as an opportunity for witnessing.

Such witnessing sails under cover of the Free Exercise Clause, but Judge Hamilton's reference to the Supreme Court's Allegheny Courthouse decision is worth considering here. If a governental body shows a persistent preference for prayer-givers of one kind, then it can reasonably to understood as endorsing that kind of religion. If the prayer-givers are sufficiently varied, then--like holiday displays on the town square--the sectarian character of the prayers might pass constitutional muster. Lacking sufficient variety of clergy in Indianapolis--not enough Tibetan Buddhist monks, perhaps--then the praying should be non-sectarian. Or forget the whole thing.

Update: Hamilton commotion, Day 2.

Here's what Baptists used to sound like:

Your petitioners believe that all mankind are entitled to equal rights and privileges, esp. the rights of conscience...and that all human laws which obliged a man to worship in any lawfully prescribed mode, time, or place or which compel him to pay taxes or in any way to assist in the support of a religious teacher unless on his voluntary contract, are unjust and oppressive.

Here's what they tend to sound like now:

The dust is settling on the "bipartisan" stimulus bill and one thing is clear: it is anti-religious.

Yes, both the House and Senate bills have a provision that prohibits federal dollars for higher education construction grants to be used for:

"...modernization, renovation, or repair of facilities--used for sectarian instruction, religious worship...or a school or department of divinity; or in which a substantial portion of the functions of the facilities are subsumed in a religious mission."

You would think the ACLU drafted this bill...

Actually, it would be nice to think that that provision in the bill was drafted--or at least supported--by the sectarian heirs of the first passage above, taken from "The Remonstrance and Petition of a Convention of Elders and Brethren of the Baptist denomination assembled at Bristol [CT] on the first Wednesday of February, 1803." Those elders and brethren wanted no part of Connecticut's Standing Order, which provided tax monies for the support of religious institutions, including their own. Not until 1818 were they able to prevail on the state to do away with its religious establishment. 

As for the second passage, that comes from erstwhile Baptist pastor and GOP presidential candidate Mike Huckabee, seeking to gin up partisan opposition to the stimulus bill among his bloggy flock. Yes, there are Baptists who still cleave to the old-time separationist faith--yo, Joint Committee!--but they are way too few and far between.  

Update: For the record, the prohibitions on spending for religious facilities is standard education bill boilerplate going back to the 1960s. Steve Benen has Huckabee and company dead to rights, backed up by pdfs of earlier bills.

Andrew Sullivan rightly corrects Camille Paglia for claiming that marriage is a religious concept that should be left in the hands of religious institutions while the state should concern itself solely with civil unions and the legal rights appertaining thereunto. (The truth is that marriage was always the business of the civil order; the religious dimension was johnny-come-lately.) Sullivan ends his post by lamenting the inability of Americans to accept a "simple rule of civil marriage for all; religious marriage for all who want to supplement it with God's grace":

Why is that so hard for some people of faith to grasp? Why are their marriages defined not by the virtues they sustain but the people they exclude?

The answer is that, like prayer in public school, displays of the Ten Commandments on public land and in government buildings, and retention of "Under God" in the Pledge of Allegiance, the impulse to restrict marriage to one man and one woman draws on a certain popular desire to have civil society operate under a sacred canopy. So the fact that most religious bodies do not recognize same-sex marriage seems to many of their members dispositive. Even as they recognize that the institution can be purely civil (hey, justice of the peace!), they, like Paglia, accept its sacralization as a given.

Last Friday, the Lexington Herald-Leader published a story by John Cheves revealing that Kentucky's 2006 law organizing its Office of Homeland Security lists as its first duty "stressing the dependence on Almighty God as being vital to the security of the Commonwealth." That duty obligated the Office to publicize God's benevolent protection in its annual reports and the state's Emergency Operations Center to affix a plaque at its entrance declaring, "The safety and security of the Commonwealth cannot be achieved apart from the reliance on Almighty God."

The man behind this provision of the law is State Rep. Tom Riner, a Louisville Democrat who happens to be a Southern Baptist minister. "This is recognition that government alone cannot guarantee the perfect safety of the people of Kentucky," Riner told the Herald-Leader. "Government itself, apart from God, cannot close the security gap. The job is too big for government."

Be that as it may, once upon a time, Baptists considered it anathema to get the government involved in promoting God's engagement in jobs like that. Those Danbury Baptists who provoked Thomas Jefferson into dilating on a wall of separation between church and state didn't want government to do anything to further the acknowledgment of God, however beneficial such acknowledgment might be to the security, spiritual or otherwise, of the community at large. These days, that old Baptist separationism can be found in places like the Baptist Joint Committee but increasingly rarely among Southern Baptists.

So the legal challenge must come from quarters like American Atheists of Parsippany, N.J., who yesterday filed a lawsuit on behalf of a number of their co-non-religionists in the Bluegrass State. In asking that references to God be removed from the law, the suit alleges that plaintiffs "suffer anxiety from the belief that the existence of these unconstitutional laws suggest that their very safety as residents of Kentucky may be in the hands of fanatics, traitors or fools." I choose option three.

Update: Here's the complaint.

A few days ago WaPo's Michelle Boorstein and Jacqueline Salmon had a good piece on what the Obama administration may do with respect to faith-based social service funding. I have it on pretty good authority that there will in fact be an office of faith-based and community service in the Obama White House--though whether it will be called that I don't know. Boorstein and Salmon rightly call attention to the issue of employment, on which the Bush initiative foundered, at least in Congress. Obama's position has been not to support the kind of waiver of anti-discrimination laws that the Bush White House has gone in for.

Obama said this summer that he would not allow religious groups to get federal funding if they discriminate in hiring. But evangelicals close to the Obama team say they are getting signals that the door might still be open to changes. Being required to hire non-Christians would be a deal-breaker even for progressive evangelicals, they say.

Personally, I'd be surprised if an Obama administration accommodated them to any appreciable degree. This gets at a core issue of church-state separation. If it detracts from a religious institution's mission to hire those who are not with the religious program to perform the secular business that the government funds are underwriting, then there's good reason to suspect that the government would be in the business of furthering the religious ends of the institution.

Charlie Savage reports in today's NYT that the Justice Department has posted on its website a fabled but hitherto secret memo permitting religiously based hiring discrimination on the part of an evangelical organization that received a $1.5 million grant to help at-risk youth. This question lies at the heart of the contention over the president's faith-based initiative. By permitting World Vision to hire only its own religious kind with public money, the administration did by fiat what Congress refused to let it do legislatively. The memo relies on the Religious Freedom Restoration Act (RFRA), passed by Congress to reverse the Supreme Court's Smith decision, which limited the rights of those seeking constitutional protection for religious free exercise. The Court overturned RFRA with respect to the states, but it still applies to actions by the federal government. I'll leave it to the lawyers to sort out the details, but the nub of the matter is disclosed in following paragraph from a defense of faith-based hiring by Carl Esbeck, the law professor who deserves to be considered the intellectual father of Charitable Choice.

RFRA protects religious practices from substantial burdens that are imposed by the federal government. Religious charities have an interest in maintaining their religious character, and that character in turn is modeled to the poor and needy through its employees. The White House Office of Faith-Based and Community Initiatives published a booklet in June 2003 arguing that secular organizations receiving government grants freely hire based on their core mission, such as Planned Parenthood requiring that employees be pro-choice or Sierra Club asking applicants their view of global warming. Religious groups likewise cannot remain true to their founding purposes unless employees are aligned with the energizing core of the mission.

The issue, however, is that unlike Planned Parenthood and the Sierra Club, the core mission of World Vision is religious. As the memo recounts:

World Vision states that it has done so in order to “maintain [its] identity and strength, which [are] at the core of [its] success,” id. at 3, and because it “can only remain true to [its] vision if [it] ha[s] the freedom to select like-minded staff, which includes staffing on a religious basis.” Sept. 23 Letter at 1. World Vision states that the work of the Vision Youth program is “very staff intensive.” Id. at 2. Its staff—all of whom “share a faith, passion and commitment to [World Vision’s] mission”—works closely with local volunteers and churches to meet the needs of at-risk youth. Id.2

The Establishment Clause of the First Amendment bars public support for religion in a way that it does not bar public support for secular "core missions." Whatever the virtues of World Vision's program, supporting it with public funds does serve its religious purpose, if for no other reason than that World Vision itself wants to claim that not funding it would impair its religious free exercise. Under the circumstances, I can't for the life of me see the grant as anything other than an unconstitutional establishment of religion.

Ambinder has gotten hold of a memo from Obama's South Carolina Faith Team that, he thinks, is close to crossing the church-state separation line. It's got an endorsement letter from Rep. James Clyburne. It says Obama's people will be reading the stuff every Sunday and sharing with others. It says nothing about pastors doing endorsements from the pulpits. So yes, the campaign is working the faith-based crowd. But putting churches' tax exemption in jeopardy? Not unless a pastor did something stupid.

My state of Connecticut, source of some of the most important First Amendment cases in American jurisprudence, is now the source of another: Kerrigan, under which the State Supreme Court determined that that state's ban on same-sex marriage violated the state constitution's equal protection clause. Never before has a final appellate ruling come right out and said that.

GoM suggests that the McCain-Palin ticket is not well situated to respond to the ruling, squeezed between its own federalist inclination to leave same-same marriage to the states and its need to keep the religious right in enthusiasm mode. My guess it that there will be a boilerplate denunciation of the ruling as a usurpation of popular sovereignty and that will be that--at least for general public consumption. Whatever the case, on November 4 we will not be seeing the kind of "moral values" voting that we saw four years ago.

Meanwhile, in a lament over the implications of the decision, Rod ("Crunchy Con") Dreher cites Marc Stern's worries that in the process of recognizing same-sex marriage, courts and legislatures will trample on the rights of religious citizens and bodies to conduct their affairs according to their own lights. It's worth emphasizing (as Dreher does not), that Stern, general counsel for the American Jewish Congress, actually thinks there's a compelling case for same-sex marriage. As he put it in an LAT op-ed last summer:

The case for same-sex marriage, reduced to its essentials, is an attractive one. It is that the government in a liberal democracy ought not to impose any one moral vision on its citizens; moral decisions ought to be, as much as possible, a matter of private choice and not law.

The concern is that religiously based opposition to homosexuality--expressed, for example, in a doctor's refusal to artificially inseminate a lesbian woman, or the refusal of a Catholic adoption agency to approve adoptions for same-sex couples--will be declared illegal. This seems to me a legitimate concern, though one very difficult to resolve. No one would oblige a church to marry a gay couple against its convictions. For a secular company to discriminate gays in hiring because the boss has religious objections to "the gay lifestyle" is another story. If we go down the Dreher-Stern path, there will doubtless be a lot of parsing and hair-splitting, such as so many people find problematic in the Surpreme Court's Establishment Clause jurisprudence. I say, so be it.

Jay Sekulow understands that the "remedy" for the IRS rule against political endorsements from the pulpit is legislative. Why doesn't the Alliance Defense Fund?

Update: Here's today's AP story on the initiative. Melissa Rogers is seriously on the case, and the best place I know for your one-stop shopping. What's odd about this whole exercise is that it comes at a time when the country, including religious conservatives, is growing more critical of mixing religion and politics.