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The Five Religion-Related Issues that Should Most Concern the Future Obama Administration


Thursday, Nov. 13, 2008

With the election of Barack Obama, there is finally some hope that the United States can turn to a more rational set of policies relating to religion. Sixteen years of President William Jefferson Clinton and President George W. Bush meant that southern evangelicals (and many other religious groups) had unprecedented access to the White House to lobby for government support for their favorite causes. Unfortunately, that support came only at the expense of those who do not share their worldview. Neither the Clinton nor George W. Bush Administration seemed capable of telling religious groups they had crossed any line with their aggressive and constitutionally-dubious requests.

Under Clinton, the misbegotten Religious Freedom Restoration Act of 1993 (RFRA) and Religious Land Use and Institutional Persons Act of 2000 (RLUIPA) were enacted. (I've discussed RFRA in prior columns such as this one, and RLUIPA in columns such as this one.) Under Bush, the Faith-Based Initiative took flight and opened the door to federal funding for religious mission, with few restrictions and little, if any, accountability. Thus, during these 16 years, religious groups have discovered new ways to trump the laws that regulate everyone else, and convince the government to pay for their core religious missions and permit them to use the government's money to hire only their fellow adherents.

The first lesson that President-elect Barack Obama needs to learn in this arena is that, just as the Framers -- particularly James Madison -- would have expected, religious entities are perfectly capable of engaging in rent-seeking behavior that does not necessarily serve the public good. But I think Obama already knows that well, having given an impressive speech several years ago on the value of the separation of church and state, which I discussed in a prior column.

Laudably, Obama already has indicated that he will be reversing two federal regulations that were a direct result of lobbying by religious lobbyists - the federal regulations limiting federal funding of stem-cell research, and those prohibiting international family planning groups from advising women about abortion. There are other issues, though, that also require his attention - and I'll discuss the five I feel are the most pressing here:

The First Key Issue: End Religious Discrimination in Programs That Receive Government Funding

On the campaign trail, Obama stated that he would support the further existence of the White House Office of Faith-based and Community Initiatives, which provides federal funding for religious groups engaging in social services. But he also opposed a regulation that gives entities that receive such funding the right to hire only co-religionist to provide the services at issue. He should now act on that belief, and reverse the regulation.

Obama is not the only one who opposes government-funded discrimination; Congress balked at it, too. Right-wing religious lobbyists insisted that they should have the right to discriminate on the basis of faith in hiring for federally-funded social service programs, even when such a program served only secular ends such as providing food or job placement assistance. They have failed to explain why social service providers should be chosen on the basis of belief but not education, expertise, or experience. The members of Congress refused to pass such legislation, but the Bush Administration got around their unease and unilaterally issued federal regulations permitting the discrimination.

Indeed, the Administration went so far as to claim that RFRA, a federal statute Congress had previously passed, affirmatively permitted the discrimination that Congress was refusing to license. It is a national disgrace when the government funds discrimination, and Obama would be right to follow up his campaign promise and reverse the regulations.

The Second Key Issue: Choose An Attorney General, Solicitor General and, If Necessary, Supreme Court Justices Who Demonstrate A Healthy Respect for the Establishment Clause and the Separation of Church and State

If there is one hallmark of the Bush Administration, it is that church and state are political allies, joined at the soul, each serving the other. Bush himself obviously has not believed that the Establishment Clause places any limits on his joinder of government power and money with religious entities. Now, under a new Administration, it would be refreshing to have an Attorney General and Solicitor General (and Supreme Court Justices) who take seriously James Madison's warnings about the potential for abuse of power by religious entities.

If this country is to thrive, with its wondrous and extraordinary diversity of religious beliefs and practices, it needs an open-minded Attorney General, Solicitor General, and Supreme Court who take the values of diversity and pluralism seriously and who foreswear pushing their personal religious values on their employees, their institutions, or their country. Mutual respect for all believers has been placed on a shelf for far too long.

Respect for disestablishment values should also lead the Obama Administration to remove the "religion chair" in the Department of Justice, which has been filled by a former lawyer for the Becket Fund and was at base an advocate for religious entities in the Department. If a church found itself not winning its RLUIPA claim fast enough, a quick phone call to the DOJ could result in the federal government quickly lowering the boom on a small, local government simply trying to enforce its community's zoning laws neutrally and fairly. Religious entities do not deserve or, frankly, need this special advocate within the Department of Justice.

The Third Key Issue: Support State Measures to Prevent and Prosecute Child Sex Abuse, Even When It Occurs Within Religious Communities

There is now incontrovertible evidence that religious communities hide child sex abuse. Too often, they seek to protect the perpetrator and the religious institution's public image at the expense of children suffering abuse. This is not just a Catholic problem, or a Latter-Day Saints problem, or a Jehovah's Witnesses problem. We also now know that it is also an Orthodox Jewish problem, among others; it spans all beliefs and creeds. Abuse is wholly nondenominational. Wherever it appears, whether in a religious or secular context or community, it must be stopped.

Tragically, American culture is structured to make it harder to identify perpetrators within these communities, as prosecutors and other powerful figures frequently either defer to religious leaders, or simply lack the courage to rock the boat of their own religious group. We learned recently, due to the brave reporting of Hella Winston at Jewish Week, that Assemblyman Dov Hikind of the New York General Assembly has been keeping records of known abusers within the Orthodox community - but has failed to alert the police, and that this was true even when Hikind knew that one perpetrator, in particular, had abused a child in the very recent past. This pattern of cover-up is not unusual; it happens all the time, in both religious and secular organizations. Hikind's behavior is comparable to that of Fr. Andrew Greeley -who has bragged publicly that he knows who many perpetrators are in the Catholic Church, but has refused to name them publicly, as I discuss in a previous column.

The net result of such religious leaders' abdication of responsibility is that all of our children might as well wear "Come and Get Me" T-shirts, because these predators do not necessarily stick to victims within their own communities. They want children for sex, period. So when the fellow believer keeps the identity of the predator from police, he or she puts all children at potential risk.

The evidence cannot be more clear: Many entities, both secular and religious, cover up the identities of perpetrators within their ranks. With state-level solutions falling woefully short, the federal government needs to step in to encourage the states to make it easier for victims themselves to name perpetrators when religious leaders won't.

There is only one route that works on this score: letting victims go to court whenever they are ready. Right now, in most states, the statutes of limitations bar most victims from testifying by the time they are psychologically ready to do so, and thus allow perpetrators to expand their search-and-destroy missions. As I suggest in my book Justice Denied: What America Must Do to Protect Its Children, the federal government can do a great deal to help children by creating financial incentives (or disincentives) for states to open their courts to child sex abuse victims.

The Fourth Key Issue: Offer Federal Resources to Investigate the Abuses - Including Child Abuse -- that Typically Arise from Polygamy.

Polygamy is a crime rooted in male domination, and too often, it results in spousal and child abuse. Most recently, twelve men were indicted from the small community of Fundamentalist Latter-Day Saints (FLDS) living on the Yearning for Zion Ranch compound in Eldorado, Texas, for child abuse or failing to notify authorities of known abuse. That is a lot of men engaged in child sex or covering it up for such a small community. Texas deserves a lot of credit for protecting the children in their state, despite the FLDS's public relations machine. States like Utah and Arizona, though, where there are far more fundamentalist polygamists, have been both inept and shameless in fostering polygamy despite its plain prohibition under the criminal law.

There is no question that children are transported across state lines, in violation of the federal Mann Act, for "spiritual marriage" purposes, which is one of the reasons that Fundamentalist Latter-Day Saints leader Warren Jeffs is facing serial trials on both state and federal charges. An Obama Department of Justice should put significant resources into FBI investigations to halt the illegal practices in these groups, which are creating such risks for children. There also needs to be a well-thought-out plan for dealing with those entering the United States who engage in polygamy -- which, for instance, is accepted in some Muslim communities around the world.

The Fifth Key Issue: As Part of the Government's Aid to Homeowners, Revoke Laws that Unfairly Privilege Religious Groups in Local Zoning Conflicts.

As if homeowners were not facing enough issues in this era of skyrocketing interest rates and widespread foreclosure, RLUIPA, too, has proven itself to be a plague on residential neighborhoods. Religious entities have insisted on greatly expanding their facilities in residential neighborhoods -- adding uses like catering halls and homeless feeding shelters, and introducing dormitories. None of these uses are consistent with the atmosphere and zoning of most residential neighborhoods, and many are patently inconsistent with homeowners' interests. Yet over and over again, religious entities have pushed through plans no secular group would dare offer, by threatening local governments with the cost of the religious groups' attorneys' fees under RLUIPA.

We need to get the federal government out of the business of ordinary local land use regulation in residential neighborhoods. RLUIPA was passed on the basis of empty claims of widespread, persistent, and pervasive discrimination against religious entities by land-use officials. Over the past eight years, many RLUIPA cases have been filed, and the Bush Justice Department has shifted Civil Rights Division resources from traditional civil rights issues, to RLUIPA local government investigations. Yet all this activity has - notably - failed to result in a record supporting claims of widespread or significant discrimination. As everyone involved with it knows, RLUIPA didn't address discrimination; it established a new, specially-privileged kind of landowner - and local governments, and ultimately taxpayers, have been burdened with the cost. Congress passed RLUIPA without even considering how giving religious entities a pass on land use laws might impact millions of residential homeowners. Now, we know the answer, and it's not pretty.

RLUIPA needs to be seriously reconsidered, and then amended. Ideally, it should not apply to residential neighborhoods at all. Short of that, at least it should be amended to repeal the provision allowing attorneys' fees for lawyers representing religious landowners in cases affecting residential neighborhoods.

If these five key steps are taken, we will have gone a long way toward restoring the basic fairness and equality upon which America is based, honoring the Establishment Clause, and protecting our children from one of the worst fates that can befall them. All those are worthy goals; let's hope they are goals the new Obama Administration will share.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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