By J. Brent Walker, BJC Executive Director
April
29, 2009
I write this column as the first 100 days of President Obama’s administration come to a close. What can be said about its church-state record at this early but highly symbolic juncture? A lot has been written about the faith-based and neighborhood partnership initiative. I want to mention three other issues that deal more directly with social policy but with religious liberty overtones. These important issues also teach larger lessons about the proper relationship between church and state.
First, the administration’s proposed budget cuts back on the deductibility of charitable contributions by certain donors in 2011. Tax exemption is not a constitutional right, but it does reflect a proper neutrality on the part of government toward religion. Church and state remain separate, with the state neither giving money to (grants) nor taking money away from (taxing) religious non-profits. The deductibility of charitable contributions has been a time-honored adjunct to Federal tax exemption for section 501(c)(3) organizations, including churches.
The proposal reduces the deductibility percentage from 35 percent to 28 percent for families making $250,000 or more, arguably creating a disincentive to give. Although some say it may result in diminished giving to universities, museums and art galleries, it probably would not seriously affect giving to most churches and religious organizations, including the Baptist Joint Committee. Just the same, we would do well to keep existing deductibility rules and even expand them to allow non-itemizing taxpayers to deduct a portion of their charitable contributions in addition to the standard deduction.
Second, the Obama administration’s reconsideration of conscience clause protection for health care providers highlights the ever-present tension between the accommodation of religion by government and the untoward effects on third parties. Since 1973, federal statutory law has provided an exemption for health care providers who have religious objections about providing abortion or sterilization services. At the end of his term, President Bush signed a more expansive executive order cutting off federal funding for organizations that do not allow doctors, nurses, pharmacists and other health care professionals to decline to provide a variety of services, including contraception, fertility and end of life issues. This has fostered criticism that Bush’s order would prejudice the health of patients who may be deprived of needed care. President Obama rescinded the order, and his administration is presently studying alternatives. In the meantime, statutory exemptions continue.
Any appropriate response to this issue must balance the rights of conscience with the ability of patients to get the services they need. That is to say, there must be an alternative avenue open to the availability of medical treatment and prescriptions, even if a particular health provider will not provide them for religious reasons. To extend an across-the-board exemption, without balancing the rights of third parties, would be grossly unfair and arguably raise constitutional problems. The application of a reinvigorated Title VII (the need for which we have argued for years) and its requirement of reasonable accommodation of religion in the workplace would go a long way to properly honor these interests.
Third, a cluster of issues surround the demand for equal treatment based on sexual orientation, mainly in the areas of employment and marriage. These issues feature the difficulty in balancing religious liberty of some with civil rights of others. The administration is committed to equal rights, including domestic partnerships but does not favor same-sex marriage. Arguments continue to rage, along with calls to repeal the Defense of Marriage Act, pass the Employment Non-Discrimination Act and extend rights by various state legislatures and courts.
These issues are fought on the bloodiest battlefields of the culture wars. Yet, there may be some common ground for people of good will on which to stand. Some have suggested a bifurcated system with the state providing rights in a civil partnership, while houses of worship define and decide issues about marriage. (This also could relieve pastors of the oft-complained-of task of solemnizing marriage on behalf of the state.) Another way suggested to arrive at a more peaceful solution would be to link up any extensions of gay rights in the domestic and employment context with broad and vigorous exemptions for religious bodies.
The Obama administration, the Congress and state legislatures would do well to recognize the need to take seriously both sides of the debate and, to the extent possible, help fashion a win-win outcome. Although some will oppose the extension of any civil rights — gay rights or otherwise — I think much of the resistance comes from people who want to ensure the autonomy of their religious organization and protect the integrity of their own beliefs.
These and other church-state issues will unfold during the second 100 days and beyond. We’ll be standing watch on the wall as they do, reminding policymakers of the importance of religious liberty and government’s role in helping to ensure it for all Americans.
Brent Walker’s column appears each month in the BJC’s newsletter, Report from the Capital. To sign up for your free subscription, just send your name and mailing address to [email protected].
