{"id":52975,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/ability-fl-prod.internetbrands.com\/ability-legal\/supreme\/legal-commentary\/senator-obamas-endorsement-and-promised-expansion-of-faith-based-funding-repeating-past-mistakes-and-jeopardizing-the-separation-of-church-and-state.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"senator-obamas-endorsement-and-promised-expansion-of-faith-based-funding-repeating-past-mistakes-and-jeopardizing-the-separation-of-church-and-state","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/senator-obamas-endorsement-and-promised-expansion-of-faith-based-funding-repeating-past-mistakes-and-jeopardizing-the-separation-of-church-and-state.html","title":{"rendered":"Senator Obama’s Endorsement and Promised Expansion of Faith-Based Funding: Repeating Past Mistakes, and Jeopardizing the Separation of Church and State"},"content":{"rendered":"\n
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Senator Obama’s Endorsement and Promised Expansion of Faith-Based Funding: Repeating Past Mistakes, and Jeopardizing the Separation of Church and State<\/h1><\/td>\n <\/tr>\n

By MARCI HAMILTON <\/h2>
<\/a><\/td>\n <\/tr>\n

Thursday, Jul. 10, 2008<\/td>\n\n <\/tr>\n <\/table>\n\n\n\n\n

Among the Bush Administration\u2019s many problems, a primary fault has lain in its incessant deference to religious interests. From its promotion of funding for religious mission through the White House Office of Faith-based and Community Initiatives, to its creation of a special office in the Department of Justice to aggressively aid religious interests, it has been an administration deaf to Establishment Clause concerns.<\/p> \n

Traditionally, the Democrats had been more sensitive than the Republicans to the separation of church and state. However, southern evangelicals and Presidents Jimmy Carter and Bill Clinton turned the tide in a way that fed into the Bush Administration\u2019s uncritical support for religious agendas and interests. (I have no problem with religious entities lobbying for their interests; my concern arises when public officials do not carefully consider such requests and when they ignore constitutional boundaries in favor of those religious entities.)<\/p><\/span>\n \n\n\n

Previously, Democratic Presidential candidate and Senator Barack Obama seemed to epitomize the now-hackneyed phrase, \u201cagent for change,\u201d in this arena, if one looked to a speech he made several years ago. (I discussed that speech in greater detail in a prior column<\/a><\/strong>.) He was both eloquent and explicit at that time in support of a robust view of the Establishment Clause, seeming to convey a strong belief in the reasonable separation of church and state.<\/p><\/span>\n

But that speech occurred before we had any concrete statements from Obama regarding religion. Now, there is evidence that indicates that he is unlikely to depart far from the Bush Administration\u2019s position on religion and government \u2013 and thus unlikely to truly honor the Establishment Clause and its purpose in our system.<\/p>\n

Obama\u2019s Decision to Expand the White House Office of Faith-Based and Community Initiatives<\/strong><\/p>\n

This week, Obama announced that he would continue and even expand the White House Office of Faith-based and Community Initiatives. That is not terribly surprising, in that one of the primary targets of the program has been inner-city minority churches \u2013 a constituency with which Obama needs to re-connect following the Rev. Wright debacle(s). There was some talk that Bush (at the behest of Karl Rove) had backed government funding for faith-based social services in no small part because it would create connections between the Republican Party and the black community. And there was some evidence of some success on this score, as some minority churches in major cities like Philadelphia invited Bush to speak, even though the members of the congregations were almost exclusively Democrats. <\/p>\n

What is troubling about Obama\u2019s announcement, though, is that he did not stop with continuation of the Office itself. Rather, he promises to expand it. Moreover, there are conflicting reports on his view regarding discrimination by religious social service providers on the basis of religious belief. Some reports have him saying that he is wholly against such discrimination in programs accepting any government funds, while others seems to say that he would be tolerant of such discrimination in some circumstances. When the issue is the delivery of public social services, such discrimination is never justified. But neither is the government funding of religious mission.<\/p>\n

It would be ironic for Obama to take the position that religious discrimination ever can be underwritten by the government. During his tenure as a Senator, a bill was introduced to permit religious groups carrying out social services on government funds to discriminate on the basis of faith. It was and is controversial, because the argument for faith-based federal funding rests on the argument that the government is not doing enough for all of the people and religious groups can fill that gap. Democrats stopped that bill from moving. Therefore, Bush took the matter into his own hands and instituted a rule permitting such discrimination through the executive branch. If Obama intends to reject that position, it will not be hard for him to do. <\/p>\n

To date, there has been a paucity of public discussion regarding discrimination by social service providers on religious belief. As usual, the focus has been trained on religious groups with the argument that they need to discriminate in favor of co-religionists. But such arguments hide the larger public policy that is at stake here. If a Baptist group, for example, can discriminate on the basis of faith, then it can hire the less- qualified Baptist psychiatrist for its teen drug program and reject the more-qualified Jewish psychiatrist. The upshot? Subpar public services. That would undermine the purported purpose for funding religious mission \u2013 to serve more Americans in need of social services. <\/p>\n

In addition, it opens the door to the use of federal funds to underwrite proselytization when all those working in the organization share a single religious perspective. There is no question from Obama\u2019s comments that he opposes the subsidization of proselytization.
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\n Why We Should Be Concerned Over the Implications of Obama\u2019s Position?<\/strong><\/p>\n

There are several troubling implications to be drawn from Obama\u2019s newfound position. First, his eloquent speech of several years ago now appears to have been little more than words. Whatever allegiance he felt then to the separation of church and state is no longer anywhere near as pronounced. Funding by the federal government of religious mission at one time was the paradigm example of a violation of the separation of church and state. The more the Carter, Clinton, and Bush Administrations opened the door to religious interests, the more plausible it became for the federal government to cross that line. Obama appears eager to follow this precedent even further as he \u201cexpands\u201d the project of federal faith-based funding.<\/p>\n

Second, Obama seems to have made this decision based on interest group pressure, rather than constitutional (or other) principle. This public announcement that, if elected president, Obama would continue the flow of federal funds into religious coffers for their mission work came at a time when he needed to prove his religious bona fides. In particular, it happened not long after he was forced into repudiating both his longtime pastor and a Catholic priest who had passionately supported Obama before his flock by ridiculing Hillary Clinton in the most ludicrous way. <\/p>\n

Instead of righting his own ship of faith before the public, by simply declaring his faith and moving on, Obama responded to these religious crises by promising religious lobbyists even greater government handouts. <\/p>\n

What is truly troubling about this scenario is not that Obama kowtows to interest groups like most politicians (Surely no one was na\u00efve enough to believe differently.). Rather, it is that the extravagances of the Bush Administration toward religious interests seem incapable of being corrected. To put it another way, the aggressive agenda on the part of the Bush Administration to put government at religion\u2019s service seems to be entrenched, even if those like Obama would forestall some elements of it. <\/p>\n

This Slippery Slope Is Steep<\/strong><\/p>\n

If this is the trajectory, what is the next step? Never does an interest group, religious or otherwise, sit quiet once it has achieved a victory. There is always the next possibility. <\/p>\n

There will be no cessation of the demand for the right to discriminate on the basis of religion in federally funded organizations. And what follows that? Here is the next set of arguments: not only should religious groups be permitted to discriminate in hiring on the basis of faith, but they should also be able to discriminate among recipients of their services on the basis of faith. Forget proselytizing; they would be able to put their own co-religionists at the front of the social services line. In that universe, Baptists receiving federal social services funds would only hire Baptists and only offer services to Baptists. Catholic Charities receiving government funds could start refusing to assist those in need unless they signed an agreement to foreswear birth control and abortion. Orthodox Jews could decide to use government funds to offer services only to those who keep kosher.<\/p>\n

Even if an Obama Administration never got that far, the very provision of funds creates a symbiotic relationship between religious groups and the government. Even when funds have been available only for a relatively short amount of time — as with the Bush faith-based initiative — they can take on the aura of \u201centitlements\u201d so that reducing the budget provokes religious lobbyists and ending the program becomes political suicide. Obama had a moment in history when he could have taken the country in another direction. Instead, he chose to strengthen the entitlement arguments for the funding of religious mission. <\/p>\n

I am not saying that Obama has gone as far as I have posited the lobbyists will go, or that he or his staff have even followed the logic of the proposal he has now made. One can only assume that the proposal came straight from religious interests, and through him, as opposed to having been meaningfully mediated by him or his aides. If he is to be an \u201cagent of change,\u201d though, he cannot simply follow in the footsteps of the Bush Administration.<\/p>\n

Meanwhile, with Obama expanding Bush Administration policy allowing the government funding of religious mission, one can only wonder what position it is likely that Republican Presidential candidate John McCain will take. On one hand, McCain is a passionate opponent of unnecessary government spending and he has not been embroiled in the personal faith dramas now characteristic of Obama\u2019s campaign. (This is despite the fact that McCain, too, has some religious supporters who may be more burden than asset in light of their views.) Moreover, evangelical voters, whom McCain is intensely courting, may not necessarily be persuaded by government funding of mission, since many of them distrust the inevitable strings attached to government funds. On the other hand, McCain has promised Supreme Court nominees drawn from among the ranks of those who have little respect for the separation of church and state.<\/p>\n

In sum, if voters are concerned about the increasing theocratization of American government, this presidential election season should give them no comfort \u2013 for regardless of which candidate wins, it appears likely that the church\/state wall will only continue to weaken.<\/p>\n

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\n\n\n<\/a>\nMarci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children<\/i> (Cambridge 2008). A review of Justice Denied<\/a> appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005)<\/i>, now available in paperback.

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