February 2021 Church & State Magazine - February 2021

Unlocking The Cabinet: Biden Appointees Can Restore And Protect Religious Freedom

  Liz Hayes

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.                                                  




Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

Act Now