[Richard Painter, guest-blogging, March 27, 2009 at 12:56pm] Trackbacks
Religion and Government Ethics:

For comprehensive discussion of the First Bank of the United States, a leading authority is Mark R. Killenbeck, M’Culloch v. Maryland: Securing a Nation (2006) (Killenbeck has the spelling correct). The book is reviewed by H. Robert Baker in http://legalhistoryblog.blogspot.com/2007/07/baker-reviews-killenbeck-mculloch-v.html

Now that I have inflamed nearly everyone by suggesting that partisan political activity be toned down at the White House, I will turn to religion.

I start with the radical suggestion that the best place for free exercise of religion in Washington is St. John’s Church across the street from the White House, or any other church, synagogue, mosque, temple or house of worship. Bringing religion directly into the work of the White House or another government entity can only cause trouble.

I do not address this as a matter of constitutional law, or theology, which I leave to others. I am saying that government entanglement with religion is difficult from a government ethics lawyer’s perspective. The more entanglement there is, the more difficulty there is. Combine religion with partisan political activity, as many government officials now do, and the ethics lawyer confronts a three way mix of Hatch Act regulations, the Establishment Clause and government ethics regulations. I pointed out in an earlier post that ethics problems often begin when someone thinks he or she can wear two hats instead of one. Try three.

We have throughout history had references to religious values by persons making government policy, perhaps even more so than references to civic values of political parties. This is not the problem. Appropriate boundaries are difficult to draw, but to the extent actual government functions instead of political rhetoric test the limits of those boundaries, government ethics and other legal questions move to the fore.

Entirely apart from Establishment Clause issues, a lawyer must be mindful of Office of Government Ethics regulations that prohibit government employees from using their office to endorse a particular organization, such as a particular church. There are also prohibitions on use of public office for the private gain of an individual or an organization.

Government meetings with religious leaders, like meetings with union leaders and corporate leaders, are appropriate. Government meetings with religious leaders that are used to promote fundraising by a non-government organization are, however, inappropriate use of public office for private gain. A White House staff member’s speech to members of a religious organization can be an official speech, but a White House staff member should actively participate in a sectarian religious service only in a personal capacity not an official capacity (giving an official speech and then passively sitting in on a sectarian service afterwards is in the gray area). This is also an area in which a more flexible standard is applied to the President and Vice President and to ceremonial functions where one of them is present such as a memorial service.

One time I recommended that a particular religious leader be invited into the White House. I was concerned that press coverage suggested that the White House relied too much on politically active evangelical leaders and at least twice thought I saw James Dobson hanging around the West Wing Lobby. The Office of Faith Based Initiatives was intended to reach out to a broad range of religious leaders, which it was doing, but having more high profile leaders from different perspectives could always help. I had met the retired Archbishop of Canterbury, George Carey, at a social function and I had heard that he was in Washington for much of the year. I suggested that the White House Faith Based Office invite him in for a meeting, which it did

The meeting was supposed to be official and it was informative, at least from a international comparative perspective, for assessing a justification for having a White House Faith Based Office to begin with. The meeting was to inform us about how much churches in the Anglican Communion do or do not require support from governments around the world to conduct their social programs for the poor (the answer we learned was that they do not get much government support for these programs and the best thing governments can do is not get in the way)

At the end of the meeting a White House staff member suggested we end in prayer. Others seemed to consent. Archbishop Carey then raised the point that this might not be suitable because everyone else in the room was there in a government capacity. He was assured that U.S. government employees were free to pray in a personal capacity. The situation was confusing, however, because he had been told that the purpose of the meeting was official.

There we were, I as the White House ethics lawyer at what everyone had been told was an official meeting, and the Archbishop of Canterbury was calling us on questions of separation of church and state. True, the meeting could be personal instead of official if people wanted it that way. I didn’t see how it could be both.

The meeting became unofficial. With the last “amen” was the executive privilege, if there ever was any, for the entire meeting waived? Alternatively, were there two meetings – an official meeting and a prayer meeting – instead of one? This was a muddle indeed.

Admittedly, many of us bring personal views, and sometimes our religious faith, to this discussion. I belong to a church known for a formal mode of worship that does not spill over easily into the workplace (more recently Episcopalians have also been known for ignoring the world’s problems while engaging in a loud argument between those who believe the Bishop of New Hampshire is not qualified for office and those who believe that the personal life of the Bishop of New Hampshire is the business of the Bishop of New Hampshire). Perhaps it is my own bias, but I am persuaded by the analysis of religion and politics in a book by an Episcopal clergyman who was also a United States Senator. See John Danforth, Faith and Politics: How the "Moral Values" Debate Divides America and How to Move Forward Together (2006)

Some conduct in this area is perfectly legal; it is just embarrassing. An example was a series of “Justice Sundays” in 2005 during which U.S. Senators and other politicians conducted telecasts from churches urging an end to filibusters and other tactics Democrats were using to delay Senate confirmation of nominees to the federal bench (the Eleventh Commandment “thou shalt not filibuster” is of greater or lesser theological importance depending on who controls the Senate). Such electioneering would not occur in the vast majority of churches, synagogues, mosques and other places of worship. Many Americans believe the Justice Department and Senate hearing rooms are more appropriate places to discuss these issues. Because so many people found it distasteful, “Justice Sunday” may have backfired and encumbered the Administration’s ability to get some qualified judicial nominees confirmed.

I am not suggesting that more rules will address this problem; rules often make things worse. I am suggesting that voluntary restraint by government officials who stand well clear of legal limits would restore public trust in government, and in organized religion. It would also make a government ethics lawyer’s life easier.

We seem to have reached a point where the manner in which one Republican (Governor Palin) says she does not enjoy working with certain other Republicans (McCain staffers) is to say she does not want to pray with them. We have also reached the point where such a remark, instead of being ignored, is viewed as the highest form of insult and a cause for yet more Party infighting. If we keep carrying on in this way, I hope someone is praying for the future of the Republican Party.

As Republicans conduct what amounts to a factionalized prayer meeting, the Country is under one-party rule. The Government owns more and more of our economy and asserts more power over our private lives. Churches for the time being remain independent, but one wonders what will happen when churches, bankrupted by litigation, discover that they too need a bailout and that only one small clause of the Constitution stands in the way.