Changes in Attitudes

In 2004, President Bush made the following statement about how previous administrations and government workers had treated religious groups that wanted to partner with the government to serve those in need:

And the truth of the matter is, there's a culture inside government which resents and fears religious charities, and has discriminated against them. We're changing that.

Yesterday, Attorney General Mukasey made the following statement about the same topic:

When the President launched his Faith-Based and Community Initiative in 2001, faith-based organizations faced many and varied obstacles to working with federal agencies. Good faith concerns about entanglement between government and religion led to a situation in which the religious identity of faith-based organizations trying to partner with government often had to be hidden or compromised. In some instances, these organizations were totally excluded from federal programs. Where they were allowed to take part, they were often required to change their religious character or to restrict their religious activities in ways not required by the Constitution.

Of course, religiously affiliated providers were not always excluded, and signs of religion were not always discouraged. But there was a chilling effect, and a lot of confusion. Many organizations doubted that they were eligible to be government partners; and government officials feared that they might be wrongly accused of supporting religion if they were to give a grant or a contract to a faith-based organization.

The President recognized that this meant a lost opportunity to work with some of the best available partners in many communities – the groups who were already established and doing exactly the kind of good work we were trying to support. (emphasis added)

I appreciate the more responsible rhetoric Mukasey is putting forward here, but it should not erase the past.  Responding to the Bush quote above, I said in 2006: "[I]n the ten years I have worked on this issue, I have never seen any credible evidence that there was such a culture of government hostility toward religious groups in pre-Bush administrations."  To the extent there were problems, I said, they were not attributable to resentment and fear of religion: "In my experience, government employees try to get these things right, but some issues are complicated and sometimes they don't have the best guidance.  This isn't animus toward religion."  Apparently, Attorney General Mukasey agrees.  (By the way, in this post I am bracketing my other concerns about the faith-based initiative and simply focusing on this one point.) 

In short, I take the Mukasey narrative to be a tacit admission that the earlier administration narrative was false.  Of course, the stand-up thing for the administration to do in this case would be to admit that it made unfounded and damaging allegations against entire administrations and many well-meaning civil servants.   

Comments

[Bob Ritter]

It seems to me that Melissa gives too much credit to Mukasey. While I see her point in the part of the Mukasey quote that she highlighted, Mukasey then goes on to backtrack. For example, she quotes Mukasey as saying: "But there was a chilling effect" and "led to a situation in which the religious identity of faith-based organizations trying to partner with government often had to be hidden or compromised". These are some of the same points Bush was making.

The more of Melissa's works that I read (e.g., Debating the Devine,The Rules of Engagement - How the American Tradition of Religious Freedom Helps Defi ne Religion’s Role in Civic Debate, pp. 60-63), the more I am concerned that she and others are straying from separation of church and state mandated by the Establishment Clause in order to accommodate those who would infuse religion into government.

[Melissa Rogers]

Bob, the point of this post was to contrast the fact that President Bush said there had been bad faith on the part of the government in the past and Mukasey said that the government had acted in good faith(resulting, nonetheless, in what he felt were some ill effects). Further, I did not say I agreed with all Muksaey said; I said I agreed that the government had operated in good faith, and that I appreciated Mukasey's "more responsible rhetoric" on this issue. As you will notice, I specifically bracketed other concerns.

Finally, let me offer a couple suggestions so that we can have a more productive conversation on these topics(and please forgive me if I have to resume the conversation next week). First, if you could point to specific disagreements that we have regarding the Establishment Clause, that would help. Second, it also would help if you did not assume that anyone who disagrees with any part of your interpretation of separation of church and state is not being faithful to the Establishment Clause. For more on my views of the Establishment Clause, here are two pieces of Senate testimony:

http://judiciary.senate.gov/testimony.cfm?id=1218&wit_id=3526

http://judiciary.senate.gov/testimony.cfm?id=2030&wit_id=3526

[Joe]

One of those links is formatted horribly.

But, I appreciate them. OTOH, the bit about Bob "assuming" does not seem to follow. Without more, I don't know if he "assumes" what you suggest. The "any part" in particular appears to be hyperbole.

Anyways, if he seriously thinks your position on the EC would lead to it being improperly honored, he is right to think you aren't being faithful.

[Melissa Rogers]

Sorry about the formatting errors in that second link. I can't do anything about it, but I could send you a copy of the testimony if you are interested. The testimony reflects my strong opposition to a bill that would deny attorneys fees to prevailing parties in Establishment Clause lawsuits. If anyone would like a copy, just send me an e-mail.

Joe, I've re-read Bob's comments and I stand by my take on them. Of course, if Bob thinks I have misunderstood him, I would certainly want to know that.

And Joe, as I said earlier, this would be a more productive conversation if you could point to differences between us on the interpretation of the Establishment Clause. I support robust interpretations of both the Establishment and Free Exercise Clauses, and I have tried to spell out what I mean by that over the years, so perhaps there are some things I could send you that would clear up any misunderstandings. If we do disagree on some things, however, I would not presume to dismiss you or your work on these issues and I hope you would do likewise. I believe people can differ on certain things and still work together where they agree. Moreover, I believe we can learn a great deal from each other by engaging in respectful dialogue about principled disagreements.

[Tim Wade]

Bob Ritter's comment brings up an interesting point that, while a little late in the discussion, needs to be made.

The separation between church and state is only a one way street. Americans are so wrapped up in the idea of a church on one side and government over there on the other that they fail to remember that prior to the Eisenhower administration churches enjoyed untaxed non-profit status without benefit of a 501C-3.

Because of the Establishment Clause imposed by the Constitution, the Federal government can not levy a tax against the Church. Therefore the Church or any other religious institution by default can not be taxed, and all contributions made to it are by default tax deductable. Again, this is a law that is imposed on Congress by the Constitution and not imposed on the Church or the people. As such, while Congress is not allowed to meddle in the affairs of the Church, nothing in the Constitution prohibits the Church from meddling in the affairs of Congress or any other branch of government.

The limitations placed on the Church today are entirely voluntary by way of the 501C-3, and because of the misinterpretation of the Establishment Clause almost never challenged. In all honesty, the invention of the 501C-3 limiting the role of the church in influencing government was nothing short of a brilliant move on the part of the Eisehower administration. It placed the same restrictions on the Church that were placed on Congress and kept each out of the other's affairs. However, prior to the invention of the 501C-3, Separation of Church and State for the religious institution was nothing more than a doctrinal position.