Religious Freedom Day?
  by Groff Schroeder

Religious Freedom Day has been celebrated on the 16th of January since it was first declared by President George H.W. Bush in 1993.[1] But this year, those of us who enjoy freedom from religion have little to celebrate. Last December, President Bush evaded the checks and balances of the Constitution by issuing an executive order that grants special rights to religious contractors distributing tax dollars and could be seen as establishing religion.

When drafting the Constitution, the Founding Fathers created numerous checks and balances that require formal interaction, cooperation, agreement and judicial oversight to limit the power of each branch of government. While the Constitution does not mention executive orders, they have been issued by every president since George Washington. However, legal precedent requires that for an executive order to be valid, the president's power must stem from the Constitution or an Act of Congress.[2]

While most Americans applauded the new Constitution, its opponents complained that it would not protect the People from many of the tyrannical activities that had occurred under British rule, such as religious persecution and execution of Quakers and "witches" who violated government sanctioned religions.[3] In response to these complaints, the first ten amendments to the Constitution, known as the Bill of Rights, were created. The first two clauses of the First Amendment limit the government's role in religion stating: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Under existing US law, religious groups can obtain and distribute taxpayer monies - as long as they comply with the regulations that all other government contractors obey. That changed on December 12 , 2002 when President Bush issued Executive Order 13279, "Equal Protection of the Laws for Faith Based Organizations." [4] While the order's name suggests that it grants faith based organizations equal protection, it actually grants those organizations special rights denied to all other government contractors and operations.

The order specifically allows government religious contractors to distribute tax dollars "…without removing or altering religious art, icons, scriptures, or other symbols" that many see as a form of proselytizing. While discrimination against beneficiaries on the basis of religion is forbidden, Bush's executive order expressly exempts religious contractors from Section 202 of Lyndon Johnson's 1965 Executive Order 11246, which prohibits "…discriminat[ion] against any employee or applicant for employment because of race, creed, color, or national origin."

When church groups receive and distribute tax dollars, the church becomes an arm of government, and if most religious contractors are Christian, government appears to establish Christianity. When these government religious contractors are immune from laws everyone else must obey, this provision of special rights grants a position of preeminence.

This use of the executive order to exempt religious contractors from regulations that other government contractors must obey evades Constitutional checks and balances by removing Congress from the decision making process. It also fails the test for validity set by legal precedent because it is not based upon an Act of Congress or the Constitution.

President Bush's Executive Order 13279 creates a government funded class of religious organizations with special rights to display religious symbols and discriminate in hiring, which could be construed as establishing religion in direct violation of the First Amendment.

We who treasure the American heritage of religious freedom have little to celebrate this year.

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