By Charles C. Haynes
First Amendment Center
Here's one of the best-kept secrets about the Bush presidency: Over the past five years, the U.S. Department of Justice has quietly, but vigorously, enforced civil rights laws designed to protect religious freedom.
Now Attorney General Alberto Gonzales wants to get the word out. On Feb. 20, he released a report detailing the DOJ's accomplishments and announced an initiative called the First Freedom Project to carry out "even greater enforcement of religious rights for all Americans."
Since presidents aren't shy about touting their accomplishments, I'm not sure why we haven't heard more about this before now. Maybe we're so busy shouting past one another about church-state conflicts that we overlook threats to the free exercise of religion.
Lest we forget, there are two religious-liberty provisions in the First Amendment: no establishment and free exercise. Establishment-clause battles over "under God" in the Pledge of Allegiance or the Ten Commandments in the courthouse grab the headlines. But free-exercise problems – discrimination against religious practice and expression in the workplace, schools, land use and elsewhere – have a real impact on the lives of millions of Americans.
The new DOJ report documents the Bush administration's efforts to take religious discrimination seriously. After establishing the first-ever Special Counsel for Religious Discrimination early in the administration, the DOJ's Civil Rights Division dramatically increased enforcement of federal statutes protecting religious rights.
In education, for example, the DOJ reviewed 82 cases and conducted 40 investigations from 2001 to 2006. Compare this with the 1995-2000 time period, when the DOJ reviewed one case and made no investigations.
Investigations involving religious discrimination in employment went up from 16 between 1995 and 2000 to 31 cases (including three lawsuits) between 2001 and 2006. Similar increases occurred in housing and public accommodation.
The DOJ has been especially rigorous in its enforcement of the Religious Land Use and Institutionalized Persons Act (RLUIPA), enacted in 2000. (RLUIPA protects religious groups from unfair land-use regulations and the religious rights of institutionalized persons, including prisoners.) According to the report, the DOJ reviewed 118 RLUIPA cases and opened 26 investigations over the past five years, resulting in 15 favorable outcomes prior to litigation and four lawsuits.
Administration critics aren't impressed. "Expecting the Bush Administration to defend religious liberty," says Barry Lynn of Americans United for Separation of Church and State, "is a little like asking Col. Sanders to babysit your pet chicken."
Interfaith Alliance president, Welton Gaddy, calls the DOJ project "a scam that weakens religious freedom for all Americans."
Both Lynn and Gaddy are veterans of church-state battles with the Bush administration over everything from the faith-based initiative to school vouchers. They argue that the current DOJ's position on establishment-clause issues undermines religious liberty – a problem they don't think the First Freedom Project cures.
But the debate over "no establishment," as important as it is, shouldn't keep us from finding some common ground on the need for "free exercise" protections under the nation's civil rights laws. Even those who believe that the Bush years have eroded the "wall of separation" should be able to find something to applaud in what the Bush DOJ is doing to fight religious discrimination.
As Judge Judy would say, these are real cases about real people. From attacks on houses of worship to incidents of discrimination at school and work, the DOJ over the past five years has investigated scores of cases involving the religious rights of Christians, Jews, Muslims, Sikhs, Native Americans and others.
If you face religious discrimination in America, it helps to have the DOJ on your side. Just ask the Muslim student in Oklahoma who won the right to wear her headscarf to school. Or the Christian student in New Jersey who won the right to sing a religious song at the school talent show. Or the Jewish congregation in Florida that won the right to rent worship space in its city's commercial district. Or the Sikh family in California who won the right to live free of harassment by their neighbors.
As America's religious diversity grows, so does the need for a Department of Justice that fights discrimination based on religion.
Yes, some of the DOJ positions described in the report are controversial (support for religious school vouchers, for example). But in the vast majority of cases, the DOJ's efforts to uphold religious rights should receive broad support from Americans who care about protecting the free exercise of religion.
However much we disagree about the relationship between religion and government, surely we can agree that freedom of religion should mean freedom from religious discrimination.