Making Law Enforcement a Political Enterprise: Key Examples from the U.S. Attorney Scandal and the So-Called "First Freedom Project"

By MARCI HAMILTON

Thursday, May. 17, 2007

Now, a fourth head has rolled, in the Bush Administration's Department of Justice, over the issue of the firings of United States Attorneys. Democrats and some Republicans have called for Attorney General Alberto Gonzales to resign because the firings appear to have been solely politically motivated. But so far, only those working for Gonzales have had to leave office. They include Monica Goodling, who was the White House liaison; Gonzales's Chief of Staff, Kyle Sampson; William Battle, who informed the U.S. Attorneys they were being replaced; and now Paul McNulty, the Deputy Attorney General.

It says something unfortunate about the Attorney General's character that he himself has not chosen to resign, because, given what is now known, there is little doubt that at least some of the firings were improper. Moreover, as I will explain, this is hardly the only instance in which this Justice Department has improperly politicized the enforcement of the law.

Why This Scandal May Damage Not Only Gonzales, But Also the Office of U.S. Attorney

The sycophants for the Administration have defended what happened as business as usual. In support of this claim, they make the legalistic argument that Presidents always replace United States Attorneys with their own political choices. To an extent, that is true. However, historically, those replacements have not been the result of the DOJ's monitoring whether - or how avidly -- the U.S. Attorneys were prosecuting Democrats, or engaging in other behavior relevant to the political fortunes of Republican politicians. The Republican Party really has changed character when the values of law and order take such a public backseat to political motive.

The other sad part of this scandal is that it may well reduce the stature of the U.S. Attorney position itself. One of the key reasons the position has been so desirable is that these critical federal prosecutors are usually given significant latitude to do what is right under the law. Obviously, each Administration prioritizes certain federal criminal objectives, but within those broad outlines, U.S. Attorneys have been left to exercise their good judgment. Moreover, they are far from mere political appointees: While they may be chosen out of a particular political pool during any given Administration, they are also selected in no small part for their judgment, intelligence, and integrity. And this is a distinction that does make a difference.

Interfering with U.S. Attorneys' prosecutorial discretion for political ends demeans the job. If they are political hacks first, and enforcers of federal law second, none of us is served.

Another Example of Improper DOJ Partisanship: Serving Particular Religious Interests

Unfortunately, this is not the only arena where the Attorney General seems to have subjugated the mission of the Department of Justice to political ends. In addition, the Department of Justice has become an aggressive defender of "religious liberty," though it would appear that its actual definition of such liberty entails its serving religious interests rather than enforcing constitutional rights.

Under the Constitution, and particularly the First Amendment, the government may not discriminate against religion in general, or against any particular religion. Neutral, generally applicable laws, though, may apply to religious entities - a principle the Court clearly reiterated in the 1990 decision in Employment Div v. Smith, which held that the Constitution's Free Exercise Clause does not require an exception to general state drug and unemployment compensation laws for the use of peyote in religious ceremonies.

Especially after the Smith decision, religious entities have been lobbying to obtain the right to avoid the obligations of the law - and even of laws that, like the laws at issue in Smith, do not remotely have the purpose of discriminating against religion or against particular religions. Those entities have had particular pull with the Bush Department of Justice.

Earlier, in addition to holding personal prayer sessions for staff in his office, Attorney General Ashcroft chose to prosecute Oregon for its assisted-suicide law, even though federal intervention was not needed and violated federalism principles -- in a blatant attempt to fulfill his own religious mission. This mission element of the DOJ has not ended. Now, the DOJ under Gonzales coats its religion-friendly program with frequent references to "discrimination." The key, however, is all in how one defines "discrimination."

DOJ's Religion Chair, and the "First Freedom Project": Is It Necessary?

As I have discussed in a previous column, the DOJ added a "religion chair" under Attorney General Ashcroft. Eric Treene, formerly of the Becket Fund, was hired to look solely after religious interests.

That initiative has now borne fruit in the DOJ's new and unfortunately-named "First Freedom Project." (The unfortunate aspect is that the First Amendment is only first by historical accident; there was absolutely no intent on the part of the Bill of Rights' Framers to prioritize the freedom of religion ahead, for example, of the freedom from home invasion. It has become commonplace, though, for religious interests to claim superiority of right by virtue of ordinal placement.)

The purpose of this new venture was summarized in DOJ materials as follows:

"A commitment to continued expansion of enforcement of civil rights statutes protecting religious liberty.

Creation of a Department-wide Task Force on Religious Liberty, chaired by the Assistant Attorney General of the Civil Rights Division, to review DOJ policies impacting religious liberty, coordinate religious liberty cases, and improve outreach to stakeholder communities.

Initiation of a series of regional seminars to be held around the country to educate religious, civil rights, and community leaders, attorneys, government officials, and other interested citizens about the laws protecting religious freedom enforced by the Department of Justice and how to file complaints.

Increased outreach to religious organizations, civil rights organizations, and other groups and individuals concerned with religious liberty issues through meetings, speaking engagements, and distribution of informational literature."

This perhaps sounds nice on its surface, as do all new government programs packaged in government-ese. However, the case has yet to be made that religious discrimination, as that term is defined by the Constitution and the Supreme Court, is the kind of problem in this society that deserves a new federal, Department-wide Task Force, or attention by the Assistant Attorney General of the Civil Rights Division. It is not at all clear that whatever religious discrimination is out there is not being adequately addressed by, for example, state and local governments, the ACLU's own relatively new project on religious liberty, or Treene's former employer, the Becket Fund, which is omnipresent on these issues, or the American Center for Law and Justice, also a force defending religious entities.

I am genuinely puzzled regarding the need for "education" on religious liberty in the United States. I would venture to say that most Americans fundamentally understand that the government is not supposed to discriminate against their religion. Also notice the use of the word "expansion" and the third paragraph's explicit acknowledgment that it is speaking primarily to religious organizations and others "concerned with religious liberty," not citizens as a whole..

From a larger perspective, it would seem difficult for the DOJ to justify this new initiative, which surely must displace other civil rights initiatives, like those attacking racial, gender, or ethnic discrimination. The Civil Rights division does not have either unlimited resources or personnel, and therefore enforcement is a zero sum game. The Department becoming aggressive for "religious liberty" means it is abandoning other civil rights initiatives. Yet, if we learned nothing else from the Imus scandal, it is that racial issues hardly have been resolved.

Evidence from DOJ's Own Land-Use Cases Suggests Little Religious Discrimination

In particular, the Department of Justice appears to have shifted resources to focus on local land use issues, because of the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA, which I've discussed in prior columns such as this one, gives religious landowners a strong legal edge in local land-use disputes. It also provides attorneys fees for "prevailing" religious landowners (which translates into attorneys fees even if the result is a settlement), which means lawyers and private organizations like the Becket Fund have cultivated such cases. There seems absolutely no need to bring the DOJ into this arena - if there are masses of religious land use discrimination cases that are not reaching the courts, I cannot imagine where they are. The DOJ operates in this arena as a mechanism for the religious entity to be able to apply more pressure to obtain what it seeks.

In its RLUIPA enforcement, DOJ has found precious few cases where there is, in fact, religious discrimination. It is far more likely that these land-use disputes are exactly that -- clashes between neighbors over secular issues such as whether one neighbor's use of land is clogging traffic and ruining a quiet neighborhood. When neighbors complain that a church should not receive a zoning variance to create a wedding venue, for example, their gripe is certainly not about the church or its teachings; it is about issues such as the prospect of hundreds of rowdy, tipsy guests wandering around on weekend nights or those same guests driving through their neighborhoods.

The DOJ's recent "Report on Laws Enforcing Religious Freedom - Fiscal Years 2001-06" makes claims that the DOJ has valiantly stamped out religious discrimination, but supporting footnotes, and citations that would actually allow the reader to check and test these claims, are scarce. The use of the socially charged term "discrimination" does not, of course, in itself prove that discrimination is occurring.

This commitment of federal resources to a problem that has yet to be documented is stunning proof of religious entities' capacity to obtain whatever they seek in the public square at this point in history. But it is also further, disheartening proof that this Department of Justice's values are more political than they are sound.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), which will appear in paperback June 2007.

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