The Future of Church/State Separation August 14, 2015

The Future of Church/State Separation

After spending a quarter-century as an activist and heading up Americans United for Separation of Church and State, Rev. Barry Lynn may be one of the country’s foremost experts on religious liberty issues. He knows all the ways the leaders of the Religious Right have tried to push their beliefs on society through legislation and lies.

In his new book, God and Government: Twenty-Five Years of Fighting for Equality, Secularism, and Freedom Of Conscience (Prometheus Books, 2015), Lynn compiles much of his writing on these issues over the years while including his current perspective on the subjects.

In the excerpt below from the book’s epilogue (obviously written before the Supreme Court’s ruling on marriage equality), Lynn offers his take on what the future of church/state separation looks like:

Who is winning the separation “war” and what does the future hold?

Prior to the Reverend Jimmy Swaggart’s two notorious (and well-publicized) encounters with “women of the night,” I found it intriguing to watch his television show occasionally — mainly in hotel rooms where the only alternatives were the shopping channel and Gilligan’s Island reruns. He was a decent piano player (although not quite up to his cousin, Jerry Lee Lewis) and a pretty fiery preacher. He was known to hold up a Bible during his sermons and say to his viewers — “You know what happens at the end of this book? We win!” He meant Christians.

Here at the end of this book, I’m here to tell you: “We secularists will win.”

Here’s my guardedly optimistic take on the future:

Things change — often quite slowly, but on balance I would submit that there will be more “separation of church and state” in 2035 than there is today.

However, what decisions are made in the next twenty years from courts will, of course, depend on who is elected and has the power to make and approve appointments for Senate ratification. Presidents who appoint judges, and the members of the Senate asked to confirm them, are often worried about getting labeled as “liberal” and thus losing the next election.

Secularism is a relatively simple construct. To me, it means that government needs to make purely secular, rational decisions on policies. It cannot rely on interpretation of anyone’s holy book and use it as the basis for decision-making. When I appear at ACLU events, I often ask civil libertarians whether it would be constitutionally acceptable if the death penalty were abolished in their state solely because of comments by “religious” advocates for its abolition. For example, what if everyone who spoke in favor of terminating this practice cited the New Testament’s admonition from Jesus that “let he who is without sin, cast the first stone,” a warning that allegedly ended the lawful effort by government leaders to stone an adulteress to death? There is mixed reaction in most cases. When I posed that issue to Harvard Law professor Alan Dershowitz on a radio show once, he replied, “That’s a good question for my next constitutional law exam.”

During the 2014 midterm elections, a significant number of conservatives have replaced many “constitutional” liberals in the Senate and in statehouses.

But this has happened before. After nearly a quarter of a century here at Americans United, I see a silver lining in the data that has been collected, some even before this election occurred, and I want to share some of it with you.

When I started here, the biggest threat was that the House and Senate would both pass and send to the states for ratification a Constitutional amendment to return government-sponsored prayer to public schools. They failed in the House of Representatives, first in 1998, then in 1999, and finally in 2001, and in the Senate in 2006. There is little chance they will even try again in either chamber. The issue has no legs; it is a footnote to history and one we can feel confident that we have put it to rest. Of course, constant vigilance is still required to make certain that local school boards abide by the Supreme Court’s decisions.

Since the victory we had in the Dover, Pennsylvania, “intelligent design” case, there have been very few successful efforts to teach it anywhere else. Even in Louisiana, where schools have theoretically been granted the opportunity to move to do so (by adding “supplemental” — that is, religious — material in biology classes), we and the Louisiana Civil Liberties Union have failed to find a single school district that has taken the bait. We jointly announced that together we will fight any school that does so. Although only half the public supports the “evidence” for evolution, the political will doesn’t seem to exist to move this issue back into the courts. In 1999, 40 percent of Americans supported the evidence for evolution (with 19 percent eliminating God from the equation altogether); another Pew poll found in 2014 that 68 percent of young people supported the evolution construct for humans, 7 percent higher than the general public.

Another positive note: I never believed that I would see in my lifetime anything like the support for marriage equality, now the law in thirty-seven states and the District of Columbia. Admittedly, many of those states are covered by decisions in federal appeals courts overturning policies or state constitutional provisions purporting to define “marriage” as the union of one man and one woman. The only argument left is religious — God doesn’t want to define marriage any other way. I was happy to hear from an LGBTQ activist in California that the change in law largely began when his community started to use the argument that “separation of church and state” required that theological arguments about the “sacrament” of marriage could not be used to justify discrimination or other unequal treatment. The Supreme Court waded into this issue on April 28, 2015, choosing to hear the one federal appeals court case that upheld state bans on same-sex marriage. The other circuits and numerous district courts had relied on Supreme Court language in the decision declaring sections of the Defense of Marriage Act unconstitutional in 2013 to declare antimarriage equality provisions in flagrant violation of the constitution.

Many polling organizations find growing sentiment for marriage equality generally, with a staggering 64 percent support from evangelical millennials.

Public opinion polls are also heavily on the progressive side on three other critical issues: the faith-based initiative, the Hobby Lobby case, and politicking from the pulpit. Two-thirds of Americans believe that if you get a grant or contract from the state or federal government you should not be allowed to give hiring preference to people of your own religious background and discriminate against people who have theological differences or no theology at all. Similarly, nearly two-thirds of Americans oppose allowing charities, including churches, from endorsing or otherwise supporting candidates for public office, and nearly half oppose churches even discussing initiatives and other public issues. Fifty-three percent of us think the Supreme Court was wrong in granting First Amendment “religious exercise” rights to for-profit companies like Hobby Lobby and its co-plaintiff, Pennsylvania wood products store, Conestoga Wood.

Fifty-eight percent of “millennials” believe that providers and corporations should be required to provide employees with healthcare plans that cover contraceptives.

How do these translate legislatively? In the one vote we’ve had on preferential hiring, the House rejected the idea of permitting it in Head Start programs back in 2003. Regrettably, although President Obama as a candidate said he’d take care of this problem, he has since decided to continue the policy and has expanded the amount of funding that has gone to religious institutions. To his credit, he did sign an executive order recently that insists that government contractors not discriminate against LGBTQ employees, and it had no direct “religious exemption.” Regrettably, he has not explained how claims of LGBTQ will be investigated, nor is it easy to distinguish impermeable bigotry from still permissible “religiously motivated” hiring discrimination. That discrimination is permitted by the continued use by the Obama administration of an Office of Legal Counsel memo from the Bush years that specifically allowed religiously motivated employment discrimination, relying on the federal Religion Freedom Restoration Act. Perhaps when President Obama thinks about this some more, he’ll do another executive order unequivocally outlawing invidious religious discrimination as well. Nearly one hundred civil rights and civil liberties groups insisted that he do this.

Polling on the Faith-Based Initiative began in 2001, after President George W. Bush started the scheme. At that time, 48 percent of Americans supported it, while 44 percent disapproved. When Pew Research did an updated analysis in 2009, 74 percent of Americans opposed a central premise of the program — that is, the aforementioned preferential hiring.

On the tax front, the Alliance Defending Freedom (ADF) has been urging local pastors to violate the non-politicking provision of the tax code and claims to have engaged more than 1,800 priests and preachers in their campaign in 2014, which, if accurate, is, far higher than in the past. If it is illegal to do this, why is the IRS not doing anything? We have insisted that they act to enforce the law; we continue to file complaints about illegal electioneering in religious institutions; we participated in a rule-making required after a technical decision was issued in one of our prior complaint cases; we have a letter from the IRS commissioner that he would start up these investigations again in June of 2014. Nothing — absolutely nothing — happened. We now have to make clear that this illegal activity may have helped elect pro-Religious Right candidates to the Senate during the mid-term elections. Do we really want this to happen again in 2016? This is another issue on which pollsters find a high degree of support for the separationist viewpoint. Nearly 66 percent of respondents in a recent poll said no to pulpit electioneering by nonprofits and close to half said these entities shouldn’t even be able to take positions on issues (further than I think the First Amendment permits, by the way).

Senator Harry Reid, the Majority Leader, tried to have a vote on a bill sponsored by Senators Patty Murray of Washington and Mark Udall of Colorado to overturn the Hobby Lobby conclusion in July 2014 but failed to get the sixty votes necessary to achieve “cloture” and move to the merits. Interestingly, every Democrat voted to move forward — even such relatively constitutionally “imperfect” senators like Pennsylvania’s Bob Casey and Arkansas’s Mark Pryor — as did the Republican’s Mark Kirk (IL), Lisa Murkowski (AK), and Susan Collins (ME). The bill was never voted on its merits and, of course, in the House, Speaker John Boehner never held hearings on the proposal, much less allowed a vote.

With school vouchers, there actually was a defeat for a Hawaii 2014 initiative to divert scarce public school funds to support religious private prekindergarten. The measure lost 55 percent to 45 percent and became the twenty-eighth straight defeat for school vouchers since 1966. In two recent national polls, we’ve seen 55 percent opposition to vouchers rising to 66 percent if the question acknowledged that this would take money away from public education.

There was also a 2014 defeat in Tennessee where an initiative was approved that would permit state legislators to impose more complicated conditions on the approval of the right to abortion (which we know from Hobby Lobby now includes prohibitions on some of the most common forms of birth control). However, millennials are significantly more “pro-choice” than any other group in the country according to the most recent Gallup poll. And by mid-2015, only 15 percent of millennial respondents took the view that abortion should be illegal under all circumstances.

When framed this way, it seems that we have achieved some remarkable things over the past few decades, and we have sensitized the public to understanding in commonsense ways what our arguments for separation really are. What we haven’t done is find ways to get people to the polls, particularly the young people who overwhelmingly support our positions on issues.

In the long run, unless we lose momentum, we are going to prevail on preserving, and even strengthening, the separation of church and state. Americans United has spent over sixty years trying to get this done — trying to shift the courts and the court of public opinion in our direction.

God and Government is now available online and in bookstores.

Excerpted from God and Government by Rev. Barry W. Lynn (Prometheus Books, 2015). Reprinted with permission from the publisher.

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