WASHINGTON (ABP) — Americans who expected President Obama to make swift and dramatic changes from his predecessor on church-state relations may be disappointed.
In his first few months in office, Obama has indicated only a handful of alterations to President Bush’s most controversial church-state initiative — a push to expand government funding for social services delivered through churches and other religious charities.
President Obama speaks at the National Prayer Breakfast in Washington. (Reuters)
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But the most significant changes in the way religion and the government relate may come gradually as Obama — whose agenda currently is dominated by significant economic and foreign-policy woes — deals on a case-by-case basis with laws, programs and court cases.
And his most lasting legacy in the area of church-state relations may come long after he has left office — as his appointees to the federal courts begin ruling on cases dealing with religious liberty.
“This is not a religious office or a religious administration,” Obama adviser Joshua DuBois, who heads the White House Office of Faith-Based and Neighborhood Partnerships, told USA Today shortly after he was named to the retooled position.
“We are going to try to find ways to work with faith-based and community organizations that are secular in nature, and don’t cross the boundaries between church and state. We understand it is a fine line. But it’s a line we’re comfortable walking.”
Obama reorganized Bush’s White House Office of Faith-Based and Community Initiatives with a broader focus. The office — created by Bush in 2001 to advance what was then the centerpiece of his domestic-policy agenda — came under significant criticism from advocates of strong church-state separation. They accused Bush of using it as a political tool, even rewarding organizations run by his conservative religious supporters with grants.
The office also was controversial because it pushed into public discussion previously obscure constitutional questions about the First Amendment perils posed by giving taxpayer dollars directly to churches and other deeply religious organizations.
As a candidate, Obama announced a clear position on one of the most contentious aspects of the faith-based-initiatives controversy — whether churches, in receiving government grants for ostensibly secular social-service programs they sponsor, retain the right to discriminate on the basis of religion in hiring people to run those programs.
“As someone who used to teach constitutional law, I believe deeply in the separation of church and state, but I don’t believe this partnership will endanger that idea — so long as we follow a few basic principles,” he said, in a campaign speech in Zanesville, Ohio.
“First, if you get a federal grant, you can’t use that grant money to proselytize … the people you help and you can’t discriminate against them — or against the people you hire — on the basis of their religion. Second, federal dollars that go directly to churches, temples and mosques can only be used on secular programs.”
But Obama and his staffers have become much more cautious about such pronouncements since taking office. In a June 11 Washington discussion with journalists hosted by the Pew Forum on Religion and Public Life, DuBois reiterated previous White House statements that he would address the hiring issue on a “case-by-case basis.”
“What the president has decided to do, and what we believe the best approach to this is, is to fully understand this issue as issues arise out in the agencies” that administer the affected grant programs, he continued.
“There is a role for responsible partnerships between the government and these organizations, but that word ‘responsible’ is key.”
Administration attorneys are reviewing programs that provide grants to religious institutions across the executive-branch agencies in an effort to “strengthen the legal footing of this office,”DuBois said.
One difference from Bush is that Obama repeatedly has expressed his support for preventing government funding of programs that are devotional or otherwise pervasively religious in nature. The federal courts have interpreted such funding as a violation of the First Amendment, which prohibits direct government aid for religion.
While Bush-administration officials said they understood the constitutional law on such cases, Bush rarely mentioned the subject in his remarks about the faith-based initiative. Instead, he devoted much of his rhetoric to extolling the virtues of religious programs to produce positive results in areas like job training, prisoner rehabilitation and drug-addiction counseling.
But Obama, in remarks at the National Prayer Breakfast announcing his decision to re-organize Bush’s faith-based office, said: “The goal of this office will not be to favor one religious group over another, or even religious groups over secular groups. It will simply be to work on behalf of those organizations that want to work on behalf of our communities, and to do so without blurring the line that our founders wisely drew between church and state.”
One area in which Obama’s effect on church-state relations may be the most immediate is his decision to nominate federal appeals-court judge Sonia Sotomayor to replace the retiring Justice David Souter on the Supreme Court.
Souter is one of the court’s most reliable votes in favor of both a strong interpretation of the First Amendment’s ban on government support for religion and a strong interpretation of the amendment’s other religion clause, which bars government infringement of “the free exercise” of religion.
As a federal judge, Sotomayor has ruled in only a handful of cases related to religious liberty — most having to do with prisoners’ rights to the free exercise of religion. First Amendment experts generally have said her record on church-state issues lies within the judicial mainstream.
Charles Haynes, a First Amendment expert with the Freedom Forum, noted her ruling in a 2006 decision that came before the 2nd U.S. Circuit Court of Appeals, Hankins v. Lyght. In the ruling, Sotomayor disagreed with the other two members of a three-judge panel and said a United Methodist minister’s age-discrimination dispute with his bishop did not belong in the courts.
“Federal court entanglement in matters as fundamental as a religious institution’s selection or dismissal of its spiritual leaders,” she wrote, “risks an unconstitutional ‘trespass on the most spiritually intimate grounds of a religious community’s existence.’”
That kind of ruling would not leave her open to significant criticism from either side of the battles over church-state separation, Haynes said.
“If this is separation, it strikes me as the kind of separation that most religious conservatives and liberals alike can support,” he wrote. “What we don’t know is how Sotomayor views government funding of social programs run by religious groups, government displays of religious symbols, or the role of religion in public schools — all hot-button establishment-clause issues that will come before the Supreme Court in the future as they have in the past.”