The Order of the DayGregory W. Hamilton July/August 2019
Surrounded by many of the leading figures of the Christian Right, President Donald Trump signed Executive Order 13831, establishing the White House Faith and Opportunity Initiative. In their eyes, he was acting as a modern-day Cyrus; a secular ruler come to rescue the downtrodden faithful.
But is it that simple or beneficial for all parties?
The order restores a Bush-era initiative that allows religious groups to be more involved in providing federally funded social services. Significantly, in the name of “religious liberty” it repeals Obama administration rules that limited the ability of religious groups to use federal funds to proselytize or preach to those they serve. This order flirts with outright violation of the First Amendment’s establishment clause provision separating church and state. The Trump order obliterates the rule whereby faith-based groups were required to refer beneficiaries to alternative programs if they objected to religious teachings while receiving services.
At the signing ceremony the president stated that “this office will . . . help ensure that faith-based organizations have equal access to government funding and the equal right to exercise their deeply held beliefs.” This was red meat language for the Christian Right—that not only would the doors be open for unprecedented government funding for religious organizations, but that the religious message would not be stifled while delivering public services.
The initiative is not itself unconstitutional, however, because it is not unconstitutional for religious and community leaders to counsel the president on national and regional matters. Trump’s executive order sets up a “Faith and Opportunity Initiative” and not an “office,” per se. But it does create lines of direct communication between faith groups and the administration. As such the intent of the order is to allow the administration to consult with faith leaders at will and provides incentivized legal guidance to the attorney general, to make sure that the ability of faith groups to counsel, preach, and teach recipients while receiving services is not limited or obstructed.
In the United States, all levels of government are banned from favoring one religion over another; but this does not prevent it from seeking counsel from religious and community leaders. Daniel Mach, director of Freedom of Religion and Belief for the American Civil Liberties Union (ACLU), says that Trump’s Christian Right-driven initiative raises the concern that this “new bureaucratic structure will lead to actual unconstitutional policies and practices,” such as favoring some religious and social community groups over others and thus unconstitutionally discriminating against them. Women and minority religious groups, including gay- and lesbian-run organizations, could face new barriers to taxpayer-funded services. But there is a larger point to be made here involving church-state constitutional history and law, and the reason you should be concerned.
Founder and fourth U.S. president James Madison once wrote, “Look, Christian, how comfortable are you that Henry would have the government provide tax support to ministers in order to achieve purely temporal [i.e., political and social] goals.” This was Madison’s appeal against Patrick Henry’s bill “Establishing a Provision for Teachers of the Christian Religion,” and in defense of Thomas Jefferson’s “Virginia Act for Establishing Religious Freedom.” In 1784 Patrick Henry proposed this bill, which would have provided tax-supported religious instruction for Virginians. Henry believed that Christian morality made people better citizens. He also thought that the state should actively promote Christian values and that it was the means to solve most (if not all) of society’s ills. A majority of lawmakers disagreed.
On behalf of Thomas Jefferson, who was serving as U.S. ambassador to France, James Madison led the successful opposition to Henry’s bill in Virginia’s Assembly, and he did it by rallying Virginia’s religious minorities in his 15-point pamphlet known as Memorial and Remonstrance. Memorial and Remonstrance 3, by Madison, really sums up the danger regarding today’s faith-based funding proposals that have existed since President George W. Bush championed them during his presidency: “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?” Perhaps that is not the intent of such funding proposals, but the potential for widespread discrimination that favors powerful religious majorities—and Christianity in general—over religious and secular minorities is very real.
Madison’s appeal was essentially this: that for the state to financially aid religious institutions—and in today’s case, faith-based organizations (FBOs)—was to empower them to advise, influence, and potentially direct and control the state’s social and political infrastructure, as well as to discriminate. Madison understood this. Patrick Henry did not. But today Henry is resurgent, and thus Madison’s concern was anything but unfounded.
Back in 2006 I attended a Bush-era Faith-based Initiatives conference in Vancouver, Washington. There were at least a thousand representatives of faith-based organizations from all five Northwestern states—Alaska, Idaho, Montana, Oregon, and Washington. John J. DiIulio, Jr., George W. Bush’s faith-based czar, finished his presentation by citing General Accounting Office regulations designed to prevent such funding enmeshing church and state entities in compromise. The floor was then opened for questions. I asked how such social service assistance would function in light of the GAO restrictions he had just cited. How equipped was the federal government to oversee FBOs to make sure no one was “proselytizing” in their provision of services to their customers? John DiIulio answered very frankly that there was a problem and that the ability of the federal government to regulate the use of such funds was a difficult, if not impossible, task.
Not surprisingly, shortly thereafter Mr. DiIulio later became a critic of the program and left the Bush White House Office of Faith-based and Community Initiatives (OFBCI) in protest.
The familiar axiom “He who owns the gold makes the rules” has the potential of being flipped on its head, and James Madison’s concerns become a present reality—given the public clamor, or will, to sustain it. Again, for Madison, the lessons of history demonstrate that for the state to aid the church financially was to empower the church to advise, influence, and direct the state. We fool ourselves if we think that federal- and state-funded faith-based programs will not have the eventual effect of dominating and controlling the social service sector in the name of providing services that the government is either inadequately prepared to deliver or dismal in fulfilling.
Imagine the political hue and cry of religious charitable organizations, and the wider political community, if such regulatory power was carried out in a serious manner. This is what Madison warned against. With loose regulatory controls—and the inability or lack of willpower to snoop around to find out who is proselytizing—it empowers faith-based organizations and its leaders, who are often directly or indirectly tied to powerful religious denominations, to direct the state’s social service infrastructure and, in essence, become a powerful agency of the state. That is not what the founders had in mind when they crafted the establishment clause of the First Amendment to the United States Constitution.
Today there are powerful forces that threaten both the establishment and free exercise clauses of the First Amendment. The First Amendment, in part, states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”Today many conservative Evangelicals and Catholics seek to reinterpret the no-establishment clause provision separating church and state in ways that would require government to financially support their institutions and enforce their dogmas with the intent of solving the moral ills of the nation.
Led by constitutional and historical revisionist David Barton, there is a movement afoot called “Project Blitz” that seeks to overwhelm and influence state legislatures to introduce and pass bills that will eventually overthrow the constitutional separation of church and state and certain aspects of the equal protection clause of the Fourteenth Amendment, which they see as the central impediments in their fight against (1) the restriction of direct government funding of religious institutions; (2) free speech restrictions on faith-based organizations that receive funding for charitable social work; and (3) equal constitutional protections for women, ethnic minorities and same-sex people. Establishing the United States as a Christian nation by law is their main goal—to restore what they perceive to be “the good old days.”
There is a tug-of-war going on. This is because in recent years the secular Left has regularly sought to marginalize the free exercise of religion by failing to recognize that government must have a sufficient compelling interest when lawfully denying or restricting the constitutional right of individuals and institutions of faith to exercise and maintain their religious mission and practices. This has been manifested by attempts to defeat state Religious Freedom Restoration Acts that ensure the right of institutions to hire only those who meet their mission standards and purposes, and ensure that business owners and employees are not forced to violate their conscience and their rights to free speech. The recent U.S. Supreme Court ruling in the Masterpiece Cakeshop situation highlights this war over whose equally guaranteed rights will prevail.
Both forces are harmful to our constitutional health; and yet the nation’s founders anticipated this severe tension. That is why they created an internal check and balance within the very wording of the First Amendment to prevent the country from being overrun by either extreme in the great church-state debate—a puritanical versus godless society. Sandra Day O’Connor, retired Supreme Court justice, summed it up best: “The religious zealot and the theocrat frighten us in part because we understand only too well their basic impulse. No less frightening is the totalitarian atheist who aspires to a society in which the exercise of religion has no place.”
Remove this balancing safeguard, and our nation’s constitutional guarantees will be lost and with it our civil and religious freedoms.
Right now, however, the side that holds the reins of government could take our country down a path of no return by essentially rewriting our Constitution in damaging and irretrievable ways.As John Hancock once wrote: “I conjure you, by all that is dear, by all that is honorable, by all that is sacred, not only that ye pray but that ye act.” It is time to speak up and protect the dynamic that protects our freedoms: call your congressperson and take a group with you to lobby them. Do whatever it takes to be heard while it can make a difference.Our country’s future depends on us.
Gregory W. Hamilton has served as president of the Northwest Religious Liberty Association (NRLA) since 1998. He is the recent author of Soul Liberty: Celebrating America’s First Freedom, which is available on Amazon, and author of a forthcoming book, Sandra Day O’Connor’s Judicial Philosophy on the Role of Religion in Public Life. He writes from Vancouver, Washington.
Article Author: Gregory W. Hamilton
Gregory W. Hamilton is President of the Northwest Religious Liberty Association (NRLA). Established in 1906, the Northwest Religious Liberty Association is a non-partisan government relations and legal mediation services program that champions religious freedom and human rights for all people and institutions of faith in the legislative, civic, academic, interfaith and corporate arenas in the states of Alaska, Idaho, Montana, Oregon and Washington. Mr. Hamilton wrote the seminal work, "Sandra Day O'Connor's Judicial Philosophy on the Role of Religion in Public Life," published in 1998 by Baylor University. From time to time, Greg publishes Liberty Express, a journal dedicated to special printed issues of interest on America's constitutional founding, church history and its developmental impact on today's church-state debates, and current constitutional and foreign policy trends. He is available to speak in North America and internationally about these subjects and related issues. To become familiar with the Northwest Religious Liberty Association, please visit www.nrla.com.