A couple of months ago, it became common to hear the talking point that President Obama was waging a “war on religion.” Although I have a view about whether that talking point was accurate as a description of the Obama Administration’s approach to, for example, contraception (hint: I don’t think it was), those debates have long since lost any capacity they may have had to generate light. So I don’t want to rehash them here. But I do want to at least call attention to an area that hasn’t drawn a lot of notice in the press, but in which the Obama Administration has fought vigorously for religious liberty.
That area is the enforcement of the Religious Land Use and Institutionalized Persons Act. RLUIPA, enacted in 2000 after the Supreme Court invalidated the Religious Freedom Restoration Act as it applied to state and local governments, imposes RFRA-like standards to state and local land-use decisions and the treatment of persons institutionalized in jails, prisons, and other state facilities. RLUIPA was passed with bipartisan support, and the George W. Bush Administration, to its great credit, did enforce the statute aggressively in the land-use context. The Obama Administration has continued that aggressive enforcement. But the Bush Administration did comparatively little to enforce the statute in the jail and prison context — the context in which individuals are totally under state control and so are entirely dependent on state accommodations to ensure that they can practice their religion. This brief, filed in September 2008, was a rare exception. (The Bush Administration did defend RLUIPA’s constitutionality in Cutter v. Wilkinson, but I am talking about affirmative enforcement efforts.)
That has changed significantly in the Obama Administration. The Obama Administration’s Justice Department has filed briefs supporting the requirement that prisons give a kosher diet to Jewish inmates who observe kashrut; filed briefs
Comments
Joe is wrong to characterize the Catholic Church’s concern for religious freedom as “selective.”. With respect to Sam’s post about the Administration’s commendable vigor in enforcing RFRA, I’d say that this vigor does not excuse its extremism in Hosanna-Tabor or its needless aggressiveness regarding the preventive-services mandate. There might not be a “war on religion”, but it sure looks like there’s an aggressive campaign against “religion that does not align with center-left politics.”.
Posted by: Rick Garnett | May 17, 2012 9:29:06 PM
President Obama has repeatedly respected the religious diversity in this country by not singling out Judeo-Christian believers for special notice. As with the Catholic Church’s selective concern for religious freedom in respect to workers/students contraceptive use, I realize that this might not be the right sort of religion. Like those who think his support of same sex marriage is anti-religion though many are married in religious ceremonies. Seriously, and the above is serious too, the info is appreciated but the allegation is weak already. This will likely convince very few who raise it.
Posted by: Joe | May 17, 2012 4:07:43 PM
Charles,
Good point, though I should point out that a lot of the RLUIPA land-use cases pressed in this administration, as in the Bush Administration, involved practices that burdened Christian groups. See, for example, this case (http://www.justice.gov/crt/about/app/briefs/bethelbrief.pdf); this one (http://www.justice.gov/crt/about/app/briefs/opulentlife.pdf); and this one (http://www.justice.gov/crt/about/app/briefs/centro_brief.pdf).
Posted by: Sam Bagenstos | May 17, 2012 1:11:07 PM
It’s interesting that all of your examples involve non-Christians. Much of the recent debate has not been about a “war on religion” so much as an alleged “war on Christianity” (or, really, a “war on Catholicism”). I don’t think it’s true, but it could theoretically be possible for the Obama administration to simultaneously be promoting non-Christian sects, while imposing restrictions on Christian denominations. In fact, this version would probably sync well with the ridiculous belief that Obama is a secret Muslim bent on imposing Sharia law. (Indeed, since a large percent of American conversions to Islam occur in prisons, easing restrictions on religious practices in prisons could be seen as encouraging Islamization.) Not that I believe a bit of this, just that I see it as the right wing response to any evidence that Obama is actually promoting religious practices.
Posted by: Charles Paul Hoffman | May 17, 2012 12:23:12 PM