Overview: religious liberty in public life

Friday, January 31, 2003

One of America’s continuing needs is to develop, out of our differences, a common vision for the common good. Today that common vision must embrace a shared understanding of the place of religion in public life and of the guiding principles by which people with deep religious differences can contend robustly but civilly with each other.
— The Williamsburg Charter

First presented to the nation on June 25, 1988, the Williamsburg Charter has been recognized by many commentators as a powerful and timely restatement of the religious-liberty principles that undergird the First Amendment to the U.S. Constitution. Drafted by representatives of America’s leading faiths and signed by nearly 200 leaders from every sector of American life, the charter calls for a national reaffirmation of religious liberty as an inalienable right — and for a renewed commitment to the universal duty to guard that right for all people. The charter is built on the conviction that the religious-liberty clauses of the First Amendment provide the democratic first principles that enable us to debate our differences, to understand one another, and to forge public policies that serve the common good.

Today, more than a dozen years after the signing of the charter and more than 200 years after the adoption of the First Amendment, America’s need to articulate a “common vision for the common good” has never been more urgent — or more challenging. Our nation begins the 21st century as the most religiously diverse place on earth, and, among developed nations, the most religious. As the charter reminds us, the task of nation-building in our time requires a shared commitment to the core civic principles that bind us together as a people.

But how will Americans develop such an understanding and commitment across religious and ideological differences that are deep and abiding? It will not be easy. Our increasingly crowded public square is often a hostile place where citizens shout past one another across seemingly unbridged distances. Incendiary rhetoric and personal attacks characterize many “culture-war” debates over abortion, sex education, homosexuality, school prayer and other hot-button issues. Any notion of the common good frequently gets lost in the crossfire of charge and countercharge. And on the fringes, wars of words can sometimes escalate into outbursts of hate and violence.

In spite of these challenges, there are at least two reasons for optimism and hope about the ability of Americans to negotiate even our deepest differences and, in many instances, to find common ground. First, as the Williamsburg Charter reminds us, the religious-liberty clauses of the First Amendment — properly understood and fairly applied — provide an effective civic framework for sustaining our bold experiment in building one nation out of many peoples and faiths. And second, a number of recent civic initiatives — many involving public education — are quietly, but successfully, staking out common ground on divisive culture-war issues.

In what follows, I explore these sources of optimism, and suggest how civil dialogue might be renewed and civic consensus reached without ignoring or compromising our diverse religious and philosophical commitments.

Religion and the public schools

This topic is thoroughly explored in a separate section on this site, but a few words here are in order. Public education has been the perennial battleground for religious and ideological differences since the earliest days of the public school movement. From the “Bible wars” of the 19th century to recent fights over the posting of the Ten Commandments, conflicts over the role of religion in public schools have long divided communities, sparked bitter lawsuits, and undermined the educational mission of schools.

The struggle over religion and values in public schools has never really been about the 60-second “to-whom-it-may-concern” prayer each morning or the Christmas tree in the school lobby. It is now and always has been a struggle over deeper questions such as “whose schools are these?” and “what kind of nation are we — will we be?” With so much at stake, it is inevitable that schools are seen as the microcosm of our public square, an arena where we debate and define who we are as a people. But when these debates degenerate into personal attacks, ridicule, false characterizations of opposing positions and similar tactics, they tear apart the fabric of our lives together and alienate large numbers of citizens from their local schools. If we cannot find ways to negotiate our differences in public schools without going for the jugular, then the schools — and the nation — face a difficult future.

Seeking common ground in the abortion conflict

The other public policy and moral issue that most defies “finding common ground” is, of course, abortion. Not since the battle over the abolition of slavery have Americans been so deeply divided and expressed their differences with so much hostility, anger and violence. The abolition debate helped ignite the bloodiest and most tragic chapter in our nation’s history. Can we do better this time?

For the founders of the Common Ground Network for Life and Choice, the answer is an emphatic “yes.” Since 1992, this organization has worked to establish dialogue between pro-life and pro-choice advocates. Leaders and members involved in the effort include activists from both sides.

In striking contrast to the bitter and polarized public debate over abortion, the Common Ground Network has created quiet but effective “common-ground groups” in Cleveland, Denver, Dallas, Washington, D.C. and many other cities throughout the country. A key starting point is that no participant is asked to compromise his or her convictions about abortion. Rather than seeking agreement on the core issue, the dialogue focuses on building mutual understanding.

Honest dialogue is, of course, valuable in and of itself. But the network pushes beyond talk to action. Participants engage in the difficult work of setting an agenda that people on both sides can support. In this process, most groups discover that they have shared goals concerning teenage pregnancy, the availability of adoption, the need for adequate day care and other related issues. As a result, they are able to work together to change public policy in ways intended to reduce the number of abortions.

Will these common-ground efforts succeed in recasting the abortion debate? That remains to be seen. But even the modest accomplishments thus far demonstrate that the network is not a quixotic quest by a few idealists, but a practical exercise in civic responsibility with potential for broad support on all sides.

All Americans have a stake in the success of the Common Ground Network and similar initiatives. Charles Colson put it best when he warned (after the killing of an abortion doctor in Florida) that the crime “was not only senseless, it was symbolic — its message that a democracy poisoned by hatred and division can be as dangerous as the streets of Sarajevo… . Our public square threatens to become Matthew Arnold’s darkling plain, where ignorant armies clash by night.”

Protecting religious liberty in the workplace

Unlike public policy debates about abortion or homosexuality, there appears to be considerable agreement among religious and civil libertarian groups on the question of religious freedom in the workplace. In 1997 representatives from many diverse groups, ranging from the Southern Baptist Convention and the Christian Legal Society to the American Jewish Congress and People for the American Way, stood with President Clinton to endorse a presidential directive on religion in the federal workplace. The president acted in response to widespread confusion about when and how government employees may express their faith while at work.

Citing the principles of fairness quite similar to those articulated in Clinton’s guidelines on student religious expression in public schools, the workplace directive makes clear that “neutrality” under the establishment clause does not mean hostility. The fact that the White House sees a need to remind supervisors that federal workers may read their scriptures during breaks or share their faith with coworkers is a sad indication of how widely “separation of church and state” is misunderstood and wrongly applied.

Evangelical Christians, Jewish leaders, civil libertarians and others who participated in the drafting of these guidelines agree on equal treatment for religious expression, an interpretation of establishment-clause neutrality that is of growing importance in Supreme Court decisions. Simply put, this means that religious expression will be treated in the same way as nonreligious expression. Of course, harassment and coercion are prohibited in matters concerning religion, as in other matters. But disagreement about religion doesn’t in and of itself create a hostile environment.

President Clinton’s directive also specifies that federal agencies should accommodate religious exercise by an employee “unless such accommodation would impose an undue hardship on the conduct of the agency’s operations.” This would mean, for example, that a worker may have the day off for religious reasons as long as the absence doesn’t make it impossible to carry out the functions of the department. Or that a worker who must wear a head covering for religious reasons should be allowed to do so as long as the covering doesn’t interfere with the safe functioning of the workplace.

The successful agreement on federal guidelines led a similar coalition of religious and civil liberties groups to draft congressional legislation intended to protect religious expression in the private workplace. While the aim of Title VII of the 1964 Civil Rights Act was to require employers to accommodate the religious practices of their employees whenever possible, the courts have interpreted the act so narrowly that little protection remains for religious liberty.

In 1998 a bipartisan coalition led by Sens. John Kerry, D-Mass., and Dan Coats, R-Ind., proposed an amendment to Title VII called the Workplace Religious Freedom Act. Although the bill has yet to reach a vote, strong support from a broad range of religious and civil rights groups gives it a good chance of eventual passage. (This bill has since been reintroduced in the succeeding congressional sessions, but has failed to pass.)

WFRA would require employers to make reasonable accommodation for an employee’s religious observance, unless the accommodation would impose “undue hardship” on the employer. The key issue, of course, is the meaning of “undue hardship.” The act defines the term much in the same way it is defined in the Americans with Disabilities Act. Thus undue hardship would involve imposing “significant difficulty or expense” on the employer. Such factors as the size of the business and operating costs would be taken into account.

In a nation founded on religious freedom, it is unfortunate that legislation is needed to get employers to accommodate claims of conscience. But in some places Muslim women are told to take off their scarves, Orthodox Jews and Seventh-day Adventists are told to work on Saturday, and Christians are told to come in on Good Friday and Christmas. In a recent survey conducted by the Tanenbaum Center of 675 workers (in a pool that included Christians, Muslims, Jews, Hindus, Buddhists and Shintoists), two-thirds of all respondents viewed religious discrimination as an important issue in the workplace. One in five workers had either experienced religious discrimination personally or knew of a coworker who had.

Since these are private employers and not the government, the free-exercise clause of the First Amendment can’t be directly invoked. But as the drafters of the Civil Rights Act understood, our commitment to religious liberty calls us to guard the right of each citizen to follow the “dictates of conscience” whenever possible. In this case, religious groups don’t intend for WFRA to cause excessive hardship or expense for business owners. But they do want more flexibility in scheduling and more sensitivity to the religious requirements of workers.

The fact that coalitions from across the religious and political spectrum support religious freedom in the workplace may signal a new, shared understanding about religious expression in the public square. For most people of faith, religion is not (nor can it be) a purely private matter. Protecting and, when feasible, accommodating religious claims of conscience in the workplace or classroom uphold the spirit of the First Amendment and serve the common good.

Partnerships: Faith-based organizations, government programs

The coalition advocating religious freedom in the workplace is bound together by a shared concern for protecting the “free exercise” of religion. Much more difficult to negotiate, of course, are issues involving the separation of church and state, especially proposals that encourage partnerships between government and religion. Two debates in particular — one over the “charitable choice” provision of the 1996 federal Welfare Reform Act and the other over relations between public schools and faith communities — have sparked sharp disagreements among religious communities as well as between religious and secular organizations. But as bipartisan support for both ideas has grown over the past few years, religious and civil libertarian groups have made a concerted effort to find some common ground.

Let’s look first at the easier of the two issues: cooperation between public schools and faith communities. Given the enormous social problems and educational challenges faced by schools, it is hardly surprising that educators throughout the nation are reaching out to religious communities for help. What is striking is that these initiatives are strongly encouraged by the U.S. Department of Education and are spreading rapidly in large, urban school districts like Chicago and Philadelphia.

On this question, as with many others involving religion and schools, getting beyond the “naked” or “sacred” models of public education is a common hurdle for school leaders. Many administrators have studiously avoided dealing with religious communities out of fear of lawsuits and controversy. Others, especially in rural areas, have traditionally seen no problem letting the local church send “Bible ladies” to teach (unconstitutional) Bible courses or with giving local clergy unfettered access to students during the school day.

But the new movement to encourage partnerships is pushing for a third model in the spirit of the “civil public school” outlined earlier. In 1999, a coalition of 14 religious and educational groups published First Amendment guidelines for cooperative arrangements between public schools and faith communities. Lead drafters included the American Jewish Congress and the Christian Legal Society. Cosigners ranged from the National PTA and the National School Boards Association to the Council on Islamic Education and the U.S. Catholic Conference.

The new agreement outlines how schools and religious groups may cooperate in providing mentoring opportunities, extended day care, recreational activities and similar programs without violating the establishment clause. For example, the partnerships must be open to all responsible community groups and not just to religious organizations, and care must be taken to ensure that cooperative programs aren’t opportunities for proselytizing of students during the school affiliated program. These guidelines were included in the Clinton administration’s mailing to all public schools, along with a U.S. Department of Education booklet, “How Faith Communities Support Children’s Learning in Public Schools,” that describes successful partnerships between schools and religious organizations.

In spite of this consensus among many religious and educational groups, a number of separationist organizations warn that these legal guidelines are only as good as their implementation. They argue that it will be difficult, if not impossible, to monitor or enforce rules against proselytizing during the cooperative programs. Moreover, distributing guidelines to all public schools may open the door to all kinds of religious groups that have long sought a way to reach public school students.

It should be noted, however, that separationists do not uniformly oppose partnerships between public schools and faith communities. Groups like the American Jewish Congress and the Baptist Joint Committee on Public Affairs take the position that such arrangements can be valuable — and, in any case, are now a widespread and growing phenomenon that must be addressed. They are convinced that while national distribution of First Amendment guidelines may carry some risk, the greater risk would be to offer no guidance.

But support for the guide from religious groups with strong separationist views of the First Amendment is only possible because the guidelines are silent on the issue of government funding (i.e., when, if ever, government money may be used to support faith- based programs for public school children). As might be expected, the funding issue is why separationists are more united in their opposition to the “charitable choice” section of the 1996 federal Welfare Reform Act. Under this provision, faith based organizations may compete for contracts or participate in voucher programs when states use private sector providers for delivering welfare services to the poor. Although the funds can’t be used for religious purposes, they can be given directly to religious institutions (including houses of worship) to administer programs on behalf of the government.

The Baptist Joint Committee, Americans United, People for the American Way and other strict separationists argue that charitable choice violates the establishment clause by allowing “pervasively sectarian” institutions to receive federal funding to administer social services. By contrast, many Catholic, evangelical and some mainline Protestant groups see the provision as a welcome opportunity to expand their services to the poor through creative partnerships with government.

Now that charitable choice is the law, some religious groups initially opposed to the idea — the National Council of Churches, for example — are seeking ways to implement it without violating the establishment clause. And the American Jewish Committee has convened a number of groups representing various perspectives on the issue to explore the possibility of a common-ground set of guidelines.

Though no new breakthrough has been announced, religious-liberty expert Oliver Thomas points out that many groups on all sides of the charitable choice debate appear to agree on a number of key principles. First, they agree that there is a role for faith-based programs in the delivery of social services. Even most separationists will agree that government funding may go to religiously affiliated programs (e.g., Church World Service, Catholic Charities) as opposed to pervasively sectarian institutions such as churches. Second, they agree that secular alternatives should be available for clients receiving services through religious institutions. Third, they don’t believe that direct government funding should go toward explicitly religious activities such as worship. And fourth, they agree that services should not be denied to anyone on the basis of religious belief or nonbelief.

It may be difficult, if not impossible, to reach common ground on the issue of government funds going directly to local congregations. Many separationists are firmly convinced that charitable choice and similar proposals violate liberty of conscience by forcing taxpayers to support religious institutions and that no list of “safeguards” will be sufficient to prevent government money from being used to proselytize. Many evangelicals and others oppose attempts to impose conditions on funding that would require churches to eliminate the religious character or symbols from their programs for the poor.

One possibility for bridging this gap might be to require that workers delivering the services be hired on a nondiscriminatory basis, thus creating the probability of a religiously diverse workforce for the funded program. (The Department of Housing and Urban Development, for example, currently requires faith-based providers “not to discriminate on the basis of religion in hiring.”) Getting agreement on this requirement will be challenging, since it is not currently mandated by the Welfare Reform Act, and religious groups may be unwilling to waive their right to discriminate in hiring on the basis of religion under Title VII of the Civil Rights Act.

In spite of the barriers to reaching agreement, all sides — particularly the traditional separationists — have good reason to keep trying. The sentiment in Congress and in many states is to expand opportunities for faith-based organizations to deliver government funded social services. Barring a successful court challenge, government partnerships with faith-
based programs are likely to proliferate in the coming decade. Without sufficient safeguards, groups on all sides have cause to worry. Religious institutions may find their autonomy threatened by government monitoring and auditing. And Americans seeking government services may find themselves subject to religious indoctrination in violation of their First Amendment right to religious liberty.

Achieving consensus on whether or not charitable choice is constitutional — or even good public policy — is highly unlikely. But just as guidelines for implementing the Equal Access Act were successfully drafted and disseminated by groups with deep differences over the wisdom of “equal access,” so guidelines and safeguards on charitable choice may be agreed to by a broad range of religious and civil libertarian groups. Such an agreement would not (and should not) end the debate. But it could do much to advance the common good by providing a principled framework for implementing charitable choice.