The United States was on the brink of abandoning the separation of church and state but has pulled back from the precipice. The best evidence of that are two recent legal actions taken against the corrupt Fundamentalist Church of Jesus Christ of Latter-day Saints (“FLDS”): one for establishing a theocracy on the border of Utah and Arizona and another for money laundering and food stamp fraud. These long-awaited actions confirm that the federal government remains devoted to a culture of freedom and toleration and opposed to the heavy-handed tactics of religious leaders who bully those who do not share their faith. We are safer for it.
Starting with the Moral Majority appearing in 1979 and flourishing until the end of the 1980s, and the rise of the evangelical Christians as a political force on the right, there have been increasing calls for treating the Establishment Clause as redundant of the Free Exercise Clause. The popular though misguided theory has been that the only purpose of the separation of church and state is to further religious exercise. In other words, it is always supposed to serve the ends of believers, and never punish them for overstepping boundaries. The “separation” of church and state was an epithet antithetical to their agenda of retaking the United States as a “Christian country,” even though it was never mono-religious. When combined with the push for hyper-protection of religious conduct through the overreaching Religious Freedom Restoration Acts starting in the early 1990s, which also have been the darling of the evangelical right, we came close to opening the doors to a new United States of individual theocracies separated one from the other by faith. Or worse, a single politically powerful dominant faith determining public policy and who holds power.
This movement was abetted by the conservative Supreme Court justices who started to parrot this line about a decade ago, and even earlier. Justice Scalia was famous for decrying Establishment Clause principles, e.g, in his dissent to Lee v. Weisman; Justice Thomas is known for his argument that the state and local governments are not bound by the Establishment Clause, as in his concurrence to Town of Greece v. Galloway; and Justice Alito has issued two extreme readings of the religious freedom statutes that border on a prescription religious control of public policy in Hobby Lobby v. Burwell and Holt v. Hobbs. There was hardly an expenditure for the benefit of religious entities that struck them as concerning, as seen in their plurality in Mitchell v. Helms. Justice Alito initiated his residence at the Court with a plurality opinion that would drastically limit the ability of citizens to sue their governments for violation of the Establishment Clause, with Justices Scalia and Thomas chiming in that there should be no taxpayer standing under the Establishment Clause—ever. Hein v. Freedom from Religion Foundation. Finally, the conservatives joined forces to open the door to prayers to start town meetings, of all things, which has led to a movement of pandering politicians suggesting opening prayers in other towns in Town of Greece.
This assault, or at least mood, against separation led the Department of Justice to drag its feet despite clear criminal behavior by religious actors. It took a coordinated effort by formerly polygamous waves and advocates to shame the FBI into adding the infamous FLDS’s Warren Jeffs to its “Most Wanted” list for his widely publicized movement of girls across state and international boundaries to deliver them to older men for marriage (and consummation of the marriage in full view of the congregation as we learned following the Yearning for Zion Ranch raids in Texas). Once Jeffs was on the list, it was as though the FBI was making a conscious effect not to track his very public movements. He was finally arrested when federal agents coincidentally ran into him at a gas station.
Once the movement for hyper-protection of religious interests gained momentum in the Clinton Administration with RFRA, the Bush Administration put it on steroids, as discussed here. The Department of Justice under President George W. Bush added a position for the Becket Fund’s Eric Treene, who has been responsible for the expanded statutory rights of religious organizations and individuals, particularly under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Becket Fund, of course, has been an active supporter and defender of RFRA, RLUIPA, and the extreme interpretations of RFRA and RLUIPA at the Supreme Court.
The Bush Administration also added the White House Office of Faith-based and Community Initiatives, which was first run by the brilliant and visionary University of Pennsylvania Prof. John DiIulio, who resigned after eight months following behind-the-scenes battles with what he called “orthodox sectarians” who demanded federal funding for programs that discriminated on religious grounds in hiring. After several public spats with “faith-saturated” groups that did nothing to advance “compassionate conservatism” by helping poor children and families. As DiIulio’s friend and top White House aide, David Kuo, documented explicitly in his book Tempting Faith (2007), several partisan GOP evangelical Christian insiders propounded the myth at the time that America was constituted as a “Christian nation,” eschewed religious pluralism and neutrality, and insisted that their churches, if not others, were entitled to special legal privileges and constitutional protections.
As a candidate, President Barack Obama pledged to roll back the RFRA exemption the Bush Administration put together permitting the White House faith-based social service providers to discriminate in hiring according to faith. He reneged, as I discuss here. So what had happened to the separation of church and state?
While some religious entities (at least conservative Christians) were enjoying the political moment, others were showing a darker side. Chief among them were the sex abuse scandals starting with the Boston Globe’s coverage now captured by the Movie of the Year, Spotlight. But the Catholic bishops did not own a patent on letting children be sexually abused. There were also the emerging stories of the polygamist FLDS, with its history of female child brides, abandoning boys, and the prophets’ iron-fisted theocratic control of their communities. Texas did not put up with it for long, and finally some of the abusers and child endangerers went to prison, but their hold in the West remained largely unchallenged. Arizona tried a few times to bring social services to the Colorado City, Arizona, and Hildale, Utah, community but they were strongly rebuffed by the prophets.
Then three recent legal actions have brought them to account. First, the federal government filed charges against one FLDS corporation for child labor violations. Stories had swirled for years about the hard life the children led, doing everything from farming, to construction, or factory work for long hours from very young ages, with very little education. Here was the federal government standing up for these vulnerable children who have no way to protect themselves from the nightmare into which they were born. RFRA reared its ugly head again and led the district court to rule that FLDS members did not have to testify to their religious practices. Perez v. Paragon Contractors Corp. The very act of putting federal resources into protecting these children, however, was heartwarming, and despite that bump in the road, they are still under the microscope.
This first step sent a message that the Department of Justice had finally reached a moment when mere religious identity was not enough to deter prosecutorial interest.
Second, the Department of Justice initiated an investigation into the theocracy that the officials of Colorado City and Hildale had instituted, and pursued it with vigor. The result was the recent jury verdict against the government officials for apportioning public services, even water, according to faith. This was a classic case of illicit theocracy and how religious leaders without constitutional boundaries will too easily use public services and rights to control believers if they can. It turns out they can’t.
This second step shows the federal government picking up the banner of the separation of church and state. It was the best and strongest signal yet from the Obama Administration that it has an alternative view to those pushing for religious exceptionalism.
Third, federal prosecutors indicted 11 men in the FLDS for food stamp fraud, a practice that has persisted for decades and for which they even have a name: “bleeding the beast.”
It has been music to my ears to hear the government backing law and order against this religious group that treats the Constitution, as well as laws against polygamy and child abuse, as irrelevant suggestions. Even more important, however, is that the federal government has re-discovered the separation of church and state. When separation fails, people are actually harmed, the government tells us. Finally!
Inevitably, the FLDS lawyers argued to the jury that it was being “targeted” and “persecuted.” Let’s get the law straight here: it is not persecution to be brought to account under the laws that govern everyone else. The FLDS has frequently violated children’s rights to education and not to work, and has committed statutory rape, child abandonment, and food stamp fraud. None of those crimes were concocted to target the FLDS. Indeed, even the anti-polygamy laws were not crafted to persecute one faith. When Congress introduced the anti-polygamy laws to the Utah Territory, it was spreading across that territory the law that already applied in every single state.
It is very important for child protection and civil rights to understand what these federal legal actions say: the fact the actor is religious does not create an automatic defense to every law. RFRA supporters would like to think so, and unfortunately the Supreme Court in Hobby Lobby bought into such a warped vision. Without Justice Scalia, however, we may well be able to return to a world in which the separation of church and state is treated as the guardian against corruption and oppression that it is.