Trust Us

Wendy Kaminer

Secularists had reason to be disappointed but not terribly surprised by President Barack Obama’s Bush-lite approach to government funding of sectarian religious groups. In establishing his own White House Office of Faith-Based and Neighborhood Partnerships (the subject of this issue’s cover feature), Obama let stand George Bush’s executive order allowing federally funded religious organizations to hire and fire on the basis of religion. As critics of faith-based funding quickly pointed out, candidate Obama had promised to prohibit these discriminatory practices, declaring that “If you get a federal grant, you can’t use grant money to proselytize to the people you help and you can’t discriminate against them—or against the people you hire—on the basis of religion.”

But, by the time he announced his face-lifted faith-based initiative on February 9, 2009, the new president had already made clear his disinclination to pick any hard fights over civil liberties, whether out of a desire to preserve political capital for budget and bailout battles or the natural tendency of presidents to resist restrictions on power imposed by a commitment to liberty. On February 10, less than a month after his inauguration, Obama’s Justice Department formally adopted the Bush administration’s expansive state-secrets doctrine in an effort to block a civil suit brought by alleged victims of torture and extraordinary rendition. At the same time, in the only substantial legal challenge to the Bush administration’s illegal warrantless wiretapping, the Obama administration tried to stop a federal court from reviewing documents in the case—documents that were mistakenly released to the plaintiff’s lawyers (who returned them) several years ago. (Glenn Greenwald offers a detailed and justifiably outraged account of these cases at salon.com.)

The Obama administration has also indicated its distaste for congressional inquiries into the Bush administration’s unconstitutional usurpations of raw power, which Attorney General Eric Holder trivialized as “policy differences” that he was loathe to criminalize. The president likes to talk about responsibility and transparency, but his vision of this new “era” does not seem to include acknowledging gross Bush administration abuses through the truth and reconciliation commission proposed by Vermont Senator Patrick Leahy.

It would be glib to characterize this as simply more of the same or to suggest that Obama has done nothing to limit the imperial presidency of the past eight years (he has, for example, ordered a review of Bush’s signing statements). But if there was ever a chance that restoring civil liberties would be a priority for the Obama administration, it was buried under the wreckage of the economy. National crises tend to expand presidential power and diminish liberty to a dot on the horizon of the president’s “big picture.”

Consider again Obama’s position on faith-based funding, laid out in his recent Executive Order 13199: having declined to revoke Bush administration rules allowing publicly funded religious groups to engage in employment discrimination, President Obama paid lip service to free exercise and the separation of church and state, providing toothlessly that the executive director of the new faith-based and neighborhood partnership program “may seek the opinion of the Attorney General on any constitutional and statutory questions involving existing or prospective programs and practices.” As twenty-six-year-old director and Pentecostal minister Joshua DuBois explained in an interview with blackchristiannews.com, instances of discriminatory practices may be reviewed on a “case by case basis”; the president has “been very clear that he thinks this program should be legal and constitutional, and he has a big-picture principle against discrimination.” In other words, never mind the absence of pesky rules against discrimination: be content to rely on the attorney general’s discretion and Obama’s “big picture principle.”

“Trust us,” President Obama is effectively saying, echoing former President Bush and so many of both their predecessors. Or, as Marc Ambinder wrote on theatlantic.com, “. . . civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals (and vice president.)” Not quite: civil libertarians put their faith not in the judgment of individual officials but in the establishment of legal restraints on power, regardless of who exercises it. From a civil-libertarian perspective, Obama was preferable to McCain because he seemed less likely (though not necessarily unlikely) to ignore or subvert the law and ask that we rely on his judgment instead. So far, not so good.

Wendy Kaminer

Wendy Kaminer is a lawyer and social critic. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU (Beacon Press, 2009).


Secularists had reason to be disappointed but not terribly surprised by President Barack Obama’s Bush-lite approach to government funding of sectarian religious groups. In establishing his own White House Office of Faith-Based and Neighborhood Partnerships (the subject of this issue’s cover feature), Obama let stand George Bush’s executive order allowing federally funded religious organizations to …

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