Donald Trump wasn’t the only one who left office last month – he took with him his Cabinet full of opponents to church-state separation.
Trump spent his four long years in office pandering to his base of white Christian nationalists and directing the executive branch to advance an agenda of undermining real religious freedom, but Trump himself had little experience working on church-state policy (or on public policy at all, for that matter). It was really his Cabinet members and executive branch staff – many of them longstanding members of the Religious Right – who conceived and executed many of the attacks on the separation of religion and government.
That’s why Americans United is hopeful that the Biden-Harris administration will right many of Trump’s wrongs. Not only do President Joe Biden and Vice President Kamala Harris have strong records of protecting religious freedom, but Biden has named members to his Cabinet who either have good records on church-state separation, or at least do not have a deep history of hostility toward it.
Americans United is placing special emphasis on the following federal departments, where policy that affects religious freedom is often made:
Department of Health and Human Services (HHS): This was a federal agency that, under Trump and his HHS secretaries Tom Price and Alex Azar, created some of the most egregious policies that misuse religious freedom to license discrimination against LGBTQ people, women, religious minorities, the non-religious and others.
Americans United has urged the Biden-Harris administration to reverse many of these harmful policies, and Biden’s nominee for HHS secretary, Xavier Becerra, is an encouraging sign that it will.
As California’s attorney general, Becerra filed several lawsuits against Trump’s HHS policies, including the Denial of Care rule, which invites health care workers to use their religious beliefs to deny care to any patient, and the birth-control rules that allow employers and universities to cite religious or moral objections to deny workers and students access to birth control guaranteed by the Affordable Care Act. (Americans United also filed lawsuits challenging both of these rules).
Becerra was confirmed as California’s attorney general just days after Trump’s inauguration in January 2017 and spent much of his tenure battling Trump. Last August, he made headlines for filing California’s 100th lawsuit against the administration.
The son of Mexican immigrants, Becerra successfully challenged Trump’s rescinding of Deferred Action for Childhood Arrivals at the Supreme Court; he participated in legal efforts to block Trump’s Muslim ban; and he filed a slew of litigation challenging Trump’s attempts to roll back environmental protections. Becerra and California also led a group of states that urged the Supreme Court to uphold the Affordable Care Act in November.
“I figured I’m going to have a chance to make a big difference,” Becerra told The Washington Post last summer when asked why he agreed to give up his seat in Congress to take over as California’s top lawyer, filling a job vacated by Harris when she was elected to the U.S. Senate. “I knew we would be busy if [Trump] took on even a fraction of what he said he’d do during the campaign.”
During his 24 years in Congress and as attorney general, Becerra demonstrated a strong commitment to reproductive freedom, earning accolades from Planned Parenthood and NARAL Pro-Choice America. “He understands that every body should be free to make their own decisions about their bodies, their lives, and their futures and can finally begin to undo the Trump administration’s work to turn back the clock on generations of hard-fought progress,” said NARAL President Ilyse Hogue when Becerra was announced as Biden’s pick.
Department of Education: Another welcome departure from the executive branch is Betsy DeVos, whom Trump named as education secretary even though DeVos has no background in public education. Rather, the Michigan billionaire has spent much of her life and family fortune working to privatize education and funnel public money into private, mostly religious schools – many of which discriminate against students, families and employees.
Even though DeVos was one of Trump’s longest-serving Cabinet members, she didn’t have much success in creating a new, federally funded voucher program. But it was a constant battle for Americans United and other advocates of public education to keep her and voucher proponents from redirecting taxpayer dollars to private schools.
With allies in Congress, DeVos was able to get the Washington, D.C., private school voucher program – the country’s only federally funded voucher program – re-authorized, and the CARES Act (the first COVID-relief package approved by Congress) directed as much as $6.5 billion from the Paycheck Protection Program to private, mostly religious schools.
DeVos and Mike Pompeo, first as Trump’s CIA director and then as secretary of state, were the highest-level members of Trump’s administration who remained in office the longest, but even DeVos didn’t stick around until the end. She resigned a day after Trump supporters stormed the Capitol in an attempt to prevent Congress from certifying Biden’s election win; in her resignation letter, she called out Trump’s inflammatory rhetoric that incited the crowd. But for many, DeVos’ one instance of opposing Trump didn’t repair four years of damage caused by her reign.
Americans United welcomed DeVos’ departure, saying on its “Wall of Separation” blog that it’s looking forward to a new approach from the Biden administration.
“Job one will be getting the department’s focus back where it belongs: strengthening, improving and adequately funding the public school system for the benefit of all Americans,” observed AU.
Randi Weingarten, president of the American Federation of Teachers, put it even more succinctly: “Good riddance.”
Biden’s nominee for education secretary, Miguel A. Cardona, is a welcome contrast to DeVos. He has a lifetime of experience in public education. As a child of Puerto Rican parents who lived in public housing, he attended public schools, where he learned to speak English. Before being appointed Connecticut’s commissioner of education in 2019, he spent two decades as a public school educator. Cardona started teaching elementary school, became one of the state’s youngest school principals and was working as an assistant superintendent when he was elevated to the state post. He also was an adjunct professor at the University of Connecticut, where he received his doctorate.
The education news site Chalkbeat notes Cardona has a limited track record on the issue of private school vouchers. While he (and Biden) have at times been supportive of charter schools, both have said their commitment is to neighborhood district schools.
“He is, at his heart, much more of an educator than a politician or an ideologue,” said Dacia Toll, the chief executive of Achievement First, a national network of charter schools, according to The New York Times. “I think he’s very practical, he’s very focused on what’s best for students, especially the highest-needs students.”
Department of Justice: The Department of Justice (DOJ) is another executive agency that, under Trump, repeatedly undermined church-state separation. Trump’s first attorney general, former U.S. Senator Jeff Sessions, had a troubling record even before he joined the Trump administration – he had supported private school vouchers, religious displays on public property and the misuse of religious freedom to discriminate, particularly against LGBTQ people. Sessions had voiced hostility toward the constitutional principles of church-state separation and secular government.
About nine months into his tenure, Sessions’ DOJ issued “guidance” that served as a blueprint for all federal agencies to enact policies that weaponized religious freedom and allowed it to license discrimination, especially against LGBTQ people, women and religious minorities. The following year, Sessions created a secretive “Religious Liberty Task Force” to enforce the guidance. Although Americans United filed a Freedom of Information Act request to learn more about the task force, the DOJ was not forthcoming.
Trump fired Sessions a year later in fall 2018, but his replacement wasn’t any better. William P. Barr, who’d served as attorney general under former President George H.W. Bush, also had a history of criticizing church-state separation and secular government – remarks he repeated as Trump’s attorney general. He had also praised Sessions’ problematic guidance on religious freedom. (See “Who’s Afraid Of Secularism?” December 2019 Church & State.)
Trump several times blustered about having Barr enforce Christian nationalist policies. In January 2020, Trump indicated he’d sic Barr on any school districts not complying with new “school-prayer guidance” issued by the Departments of Justice and Education. The guidance restated existing religious-freedom protections for public schoolchildren, but it went further than the law allows by encouraging coercive prayer by students and even staff.
A few months later, as the nation was in the early days of battling the COVID-19 pandemic and state and local officials were attempting to protect public health with little aid from the federal government, Trump lamented that some states and communities were limiting large groups at both secular and religious gatherings. He demanded that governors allow houses of worship to reopen in full, even as his Centers for Disease Control and Prevention dragged its feet at releasing guidance for religious gatherings and as reports were coming in that religious gatherings were contributing to the spread of the virus.
Barr issued a memo that threatened to go after states if he thought their COVID-19 orders showed animus toward religion, but he didn’t go so far as to say states could not limit religious gatherings alongside secular gatherings. In fact, Barr’s memo pretty accurately presented the law as it related to the intersection of religious freedom and public health, but he couched it in ominous language likely to make governors think twice about including houses of worship in their orders. In the end, DOJ intervened in very few cases involving houses of worship that sought religious exemption to public health orders.
Last month, Biden announced he would nominate Merrick B. Garland as attorney general. Garland, a judge on the influential U.S. Court of Appeals for Washington, D.C., for the past 23 years, was President Barack Obama’s U.S. Supreme Court nominee who was blocked from even having a confirmation hearing by Republican senators in 2016. Before his time on the federal bench, Garland worked in the DOJ in several roles, including deputy assistant attorney general during the Clinton administration; in that role, he supervised the prosecutions in the Unabomber and Oklahoma City bombing cases.
When Obama nominated Garland to the Supreme Court, Americans United attorneys researched his record. Despite nearly two decades on the bench at that point, Garland had weighed in on only a few religious freedom cases. Those decisions didn’t establish a clear picture of his views on church-state separation, especially since a few were decided more on procedural matters than on interpretation of the First Amendment.
One vote that was particularly noteworthy was his joining the full circuit in denying a request by a religious group to rehear their challenge of the Affordable Care Act’s birth-control benefit. Garland and the rest of the court’s refusal to rehear the case upheld the earlier ruling denying the group’s request for a religious exemption from the law.
While Garland’s record on church-state separation isn’t extensive, no red flags have been raised so far for Americans United. Perhaps equally telling is that his nomination to the Supreme Court was opposed by several Christian nationalist groups that seek to undermine real religious freedom, including the Family Research Council, Faith & Freedom Coalition and First Liberty.
As Biden continues to fill his Cabinet, Americans United will be reviewing the records of those tasked with implementing policies that impact religious freedom and church-state separation. So far, the diversity of Biden’s picks and their demonstrated commitment to equality and freedom for all is encouraging – especially when compared to Trump’s Cabinet, which was staffed primarily by Christian nationalists and their allies who sought to codify religious privilege for themselves.
Americans United has prepared a 10-point agenda for the Biden-Harris administration, detailing how religious freedom should be restored and protected. The agenda includes repealing Trump’s Muslim ban; ensuring religious freedom isn’t misused to justify discrimination in health care, social services or employment; protecting taxpayers from being forced to fund religion; and enforcing the Johnson Amendment to protect the integrity of our elections and houses of worship.
“Americans United looks forward to working with the Biden administration to make sure the United States lives up to its ideals of being a place where people of all faiths and none are welcome, equal and free to practice their beliefs as they choose, as long as they don’t harm others,” AU President and CEO Rachel Laser said.