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Birth control, faith-based partnerships and transgender bathrooms: Reflecting on Obama's religious freedom legacy

Surrounded by LGBT supporters, President Barack Obama signs executive orders to protect LGBT employees from federal workplace discrimination on July 21, 2014. Obama and his administration weren't the enemies to religion that critics claim, but he could ha
Surrounded by LGBT supporters, President Barack Obama signs executive orders to protect LGBT employees from federal workplace discrimination on July 21, 2014. Obama and his administration weren't the enemies to religion that critics claim, but he could have done more to protect religious freedom and bridge divides, legal experts said.
Jacquelyn Martin, AP

The Obama administration made a surprising announcement last spring amid heated debates over the transgender community and public restrooms. In a "Dear Colleague" letter released May 13, officials from the Department of Justice and Department of Education explained that public schools must allow students to use facilities corresponding with their gender identity, even when this identity differs from the sex on their birth certificate.

Schools needed guidance on transgender students, but the letter was divisive and heavy-handed, said Robin Fretwell Wilson, director of the Family Law and Policy Program at the University of Illinois College of Law. It mandated a policy that nearly half of Americans, including a majority of Protestants and 50 percent of Catholics, disagree with, alienating school leaders, policymakers and parents.

"It took a kind of smoldering fire and really inflamed a culture war on this question of transgender students in schools," she said.

The "Dear Colleague" letter and its ongoing fallout are indicative of the Obama administration's at-times clumsy efforts to resolve religious freedom-related disputes, according to Wilson and other scholars. Rather than work with stakeholders to create plans that all or at least most people could agree with, officials often forged ahead with their own agenda.

"I think they think, 'Here's a great idea. Here's what we should do.' They haven't always had the judgment to see why that might cause a lot of distress in other people and to moderate," Wilson said.

This act-now-and-address-concerns-later mindset led to missteps in the arena of religious liberty. However, the approach didn't keep the Obama administration from siding with religious freedom in some key decisions, such as when it defended faith-based social service organizations against liberal critics.

"It's not that they start out with the objective of harming religious freedom," said Tim Schultz, president of the 1st Amendment Partnership. Faith groups just got caught in the crossfire of some key policy changes.

As Obama approaches the end of his presidency, his religious freedom record is mixed — not always the "war on religion" that some conservative critics describe, but sometimes increasing the polarization over conscience rights.

"I saw him as many people did, that he would come in and heal a divide," Wilson said. "It's very unfortunate that, at least across the things I see in my field of vision, the divide seems to have gotten bigger rather than smaller."

Religion as a roadblock

Like all administrations, Obama and his team entered the White House with policy objectives, such as passing comprehensive health care reform. Their goals were lofty, and they faced hostile political opposition and an electorate entering the nation's worst economic downturn since the Great Depression.

"We've seen the size of the administrative state grow and pour over into places it hasn't been before. There were going to be bump-up points, and they had to know there would be," Wilson said.

For each political goal, policymakers in the White House explored their options, imagining the roadblocks along each potential path. Religion was sometimes the foe the Obama administration was willing to face, leading it to sacrifice religious freedom protections in pursuit of policy objectives, Schultz said.

"They view religious freedom as a kind of inconvenient speed bump on the way to those objectives in some way," he noted.

For example, part of implementing the Affordable Care Act involved figuring out enforcement of a women's health initiative that required employee health plans provide birth control coverage. Religious objections to the contraception mandate started piling up soon after the ACA was passed in 2010, and high-level White House leaders, including Vice President Joe Biden, who is Catholic, expressed the need for carve outs for religiously affiliated employers who objected to some or all forms of birth control.

However, others argued against faith-based accommodations, sometimes questioning whether religious arguments against the mandate were sincere, said Michael Wear, who worked in the White House and has written the forthcoming book, "Reclaiming Hope: Lessons Learned in the Obama White House About the Future of Faith in America."

"In Democratic circles generally, there is less of a familiarity with religious institutions and religious obligations and motivations," he said.

Accommodation opponents won out, and Obama settled for a narrow religious exemption to the contraception mandate. But that didn't placate the mounting opposition from religious objectors.

In the last six years, the government has faced more than 100 lawsuits over religious objections to the contraception mandate and argued its case before the Supreme Court twice. Both the landmark Hobby Lobby case and the Little Sisters of the Poor appeal forced the administration to make adjustments.

"He walked it back and did the right thing. He found room for religious nonprofits to coexist" under the ACA with other employers, Wilson said.

But some observers have a hard time forgetting that initial aggression against faith groups. "(The administration) had their reasons … and they chose those reasons over religious liberty," Schultz said.

Image problem

Although it's tempting to think the ACA's contraception mandate fully explains why Obama is rarely considered a religious freedom advocate, his unpopularity with many religious conservatives pre-dates it, said Michael De Dora, director of the office of public policy at the Center for Inquiry, a secular nonprofit organization.

"The birth control mandate was not announced until 2011. There's no doubt that you were already hearing about the Obama administration being anti-religious" before then, he said.

Obama, like Hillary Clinton, has an image problem when it comes to personal faith. His support for same-sex marriage and stances on other contentious culture war issues make him a heathen to some believers, and no amount annual prayer breakfasts or thanking God at the end of speeches will change that.

"He's not the George Bush type of Christian. He's more progressive and has a social justice-related understanding of the gospel, which has led traditional, conservative Christians to say, 'This guy doesn't have the right understanding of Christianity,'" De Dora said.

This anti-religious image means that the Obama administration doesn't get much credit for the ways it has advanced the cause of religious freedom, said Douglas Laycock, a distinguished professor law at the University of Virginia, during a panel discussion at the Religion News Association's annual meeting in September.

"They've been right on religion and religious liberty more often than they have been wrong. It is nothing like a war on religion," he said.

For example, White House leaders have been proactive in cases related to the Religious Land Use and Institutionalized Persons Act, working to protect prisoners' rights to religious practice across the country, said Laycock, who argued and unanimously won a RLUIPA case, Holt v. Hobbs, before the Supreme Court during Obama's time in office.

Additionally, Obama got the U.S. involved in the United Nations Human Rights Council, giving American leaders another avenue with which to address conscience rights around the world, noted De Dora, who is president of the U.N.'s Committee on Freedom of Religion or Belief.

"That has lent itself to improvements within the U.N. and a recognition of the importance of religious freedom," he said.

Perhaps most notably, Obama has continued to allow organizations involved with the Office of Faith-based and Neighborhood Partnerships to hire on the basis of their religious beliefs, a decision Laycock called "quietly heroic." Here, the president sided with more conservative religious groups, infuriating many civil rights and progressive faith groups in the process.

"The fact that the Obama administration hasn't fixed the hiring discrimination loophole is one of the biggest disappointments for (the Center for Inquiry) during Obama's eight years in office, particularly because, while he was campaigning, it was one of the things he promised to do," De Dora said.

The contraception mandate and transgender bathroom policy may loom large on the president's religious freedom legacy, but efforts to understand his work in this area have to include the times he championed faith, Wilson said.

"Part of his legacy is what he wasn't willing to disturb even when he was urged to," she said.

Not always inclusive

President Obama rode into office on a wave of hope and change. He was the first black president, and he was poised to use his power to lift up other historically oppressed groups.

"He was trying to foster inclusiveness in a time of incredible division," said Robert Tuttle, a professor of law and religion at George Washington University.

In the religious realm, this effort was visible in a variety of ways. Obama visited a mosque in February, where he expressed gratitude for Muslim Americans who do good in the face of prejudice. He also hosted celebrations for minority faith groups at the White House and acknowledged a variety of religious holidays, Tuttle said, applauding the president's efforts to showcase America's religious diversity.

Similarly, De Dora highlighted Obama's work to make nonbelievers feel heard and welcomed.

"There's no doubt that the Obama administration has been the most progressive and inclusive presidential administration in modern American history regarding the nonreligious community," he said, noting that the president has mentioned atheists by name in speeches and invited nonbelievers to take part in discussions on religious discrimination and other policy meetings.

And the president was comfortable speaking about his own Christian faith and how it shapes his public service, making it easier for others to do the same, said Wear, who directed faith outreach for the president's 2012 re-election campaign.

"There is a thread in Democratic liberalism that tries to suggest that religion has no place in politics," he said. "The president has made it very difficult for people to make that argument without rejecting him."

But this celebration of religious diversity and spirit of inclusiveness didn't always enter into religious freedom debates. At times, religious objectors to policy directives were villainized as bigots instead of being offered a seat at the negotiation table, Schultz said.

Schultz offered the U.S. Commission on Civil Rights' recent religious liberty report as an example of this phenomenon. The "Peaceful Coexistence" report attempted to find a balance between religious freedom protections and nondiscrimination laws, but it primarily focused on the need to prioritize the latter at the expense of individual religious belief.

"The phrases 'religious liberty' and 'religious freedom' will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance," wrote commission Chairman Martin R. Castro in a statement attached to the report.

Although USCCR isn't a direct extension of the Obama administration, the president appointed four of the eight commissioners. Schultz said he's been disheartened by growing combativeness toward religious liberty in the White House, noting that Obama is implicated in that development.

"He's sitting on top of an apparatus that has moved more firmly toward that view in the last eight years. How much do we blame him for that? It's not zero," he said.

Tuttle also spoke about this trend, sharing his sense that the president could have approached religious objectors to LGBT nondiscrimination protections differently. Religious liberty has always been a difficult concept to incorporate into law, but debates over conscience rights don't need to devolve into name-calling.

"If I were advising him, and if he had a longer time left in office, I would urge him to appoint a task force to look into that specific issue and to recommend changes that are consistent with his own vision that there is a place for everybody at the table," he said.

Moving forward

Obama led America during eight years of rapid social change. The ACA was passed and enacted, same-sex marriage was legalized and members of the transgender community became more visible than ever before.

These shifts left many people's heads spinning, including policymakers, community leaders and people of faith. Religious freedom went from a nonpartisan national value accepted by all to a contentious topic of partisan debate, as Americans battled over how best to protect conscience rights in the 21st century.

"I don't know who hit first (in religious freedom debates.) I write papers about this and I can't tell who did what to whom," Wilson said. "But I do know that every single decision seems like a fork — we can make (a situation) worse or we can make it better."

Her concern is that the Obama administration could have done more to make things better for faith groups. Too often in the past eight years, White House leaders were needlessly disruptive and divisive, like when they announced the transgender student policy in a "Dear Colleague" letter instead of having community conversations, she said.

"When you push that kind of change so fast, people don't see how they fit in," Wilson noted. The change "takes on a greater magnitude than it had to."

Obama and his team don't shoulder all the blame for growing polarization of religious liberty. Conservative lawmakers were also fanning the flames, doing things like protesting the Ground Zero mosque, Laycock said.

"The damage to religious liberty from the right has been at least as great as damage to religious liberty from the left," he said.

But just as Obama lifted up the stories of Muslim Americans and celebrated Hindu holidays, he could have reached out to the believers who felt threatened by how American culture was altered during his time in office, Tuttle said.

"Obama could have done a better job of explaining just why it is necessary sometimes to allow our convictions to be shaped by the important practices of our neighbors," he said.

Religious freedom advocates bemoaned this missed opportunity even as they celebrated some of the Obama administration's memorable religious freedom moves. It's unclear what either a Hillary Clinton or Donald Trump presidency will bring in the realm of religious freedom, and it's starting to feel like time is running out on restoring religious liberty's place in U.S. policy, they said.

"We don't need more 'I win. You lose,'" Wilson said. "How about we all win, or we all just be civil and figure it out."

Email: Twitter: @kelsey_dallas