Tuesday, October 31, 2006

Church-State Hinterlands: II

In a previous post, I investigated a current area of friction between church and state, the refusal, on religious grounds, of some cabdrivers at the Minneapolis airport to transport passengers who were carrying alcohol. There is another issue along these lines that is not controversial yet, although The New York Times is certainly trying to make it so. In a recent four-part series, they document in meticulous detail how religious groups often are exempted from the laws that other groups must obey – zoning laws, anti-discrimination laws and other restrictions on the freedom to contract, etc. We know they think it’s important because in the print edition it ran on the front page above the fold every single day and because they don’t require you to pay to access it through the TimesSelect feature; instead it is available free. The gist of the argument is found in this article:

An analysis by The New York Times of laws passed since 1989 shows that more than 200 special arrangements, protections or exemptions for religious groups or their adherents were tucked into Congressional legislation, covering topics ranging from pensions to immigration to land use. New breaks have also been provided by a host of pivotal court decisions at the state and federal level, and by numerous rule changes in almost every department and agency of the executive branch.
The special breaks amount to “a sort of religious affirmative action program,” said John Witte Jr., director of the Center for the Study of Law and Religion at the Emory University law school.

Professor Witte added: “Separation of church and state was certainly part of American law when many of today’s public opinion makers were in school. But separation of church and state is no longer the law of the land.”

Professor Witte clearly adheres to the standard received wisdom about “separation of church and state,” misplaced though it is. The primary purpose of the establishment clause of the First Amendment, in his judgment, is to prevent any state subsidy of religion. However, it is clearly important both as a matter of justice and of efficiency to prevent the state from impeding religious ideas, just as with any other. If some people believe in God and that He has manifested His moral instructions to humanity through this or that human messenger, while others believe that there is no God, then the state must be neutral with respect to all of these beliefs. Any public service and, in the modern age of the big welfare state, any public program must be made available on nondiscriminatory grounds, regardless of religious belief. Religiously motivated charity groups clearly have the same rights to participate in federal programs designed to aid the poor as nonreligious ones do. The only qualifier is that all religious groups must be eligible to compete, and the selection must not use religious criteria. A government that disproportionately directs funds to evangelical Christian groups because of their theology, for example, is violating equality before the law.

However, when thinking from the premise of equality before the law it is a mistake to reason from the starting point that these programs exist. The reason the problems that the Times series describes arise is not because religious groups are privileged, but that they are not as discriminated against as some other types of groups. All of the problems the Times describes involve interference in the freedom of association and freedom to contract. These interferences are themselves violations of equality before the law; anti-discrimination laws, for example, prohibit employers from refusing to hire people on the grounds of race or sex, but allow employees to refuse to work for particular employers on the grounds of race or sex.

That religious groups can discharge employees on grounds that for-profit corporations cannot does not mean that religion should be regulated more, but that for-profit corporations should be regulated less. The freedom to contract is a fundamental right that puts you in a position to be in charge of your own life – to associate on the grounds that you wish to, and not on the grounds that a temporary majority of Congress in some prior decade decided that you must. Religious groups are fortunate in that the First Amendment exempts them from the massive violations of the freedom to contract that other groups have become subject to since the late 1930s. The fact that Congress may not interfere with the freedom of religion, which is parallel to the prohibition on state establishment of religion, gives religions an extra layer of protection that properly belongs to all private associations.

The implied remedy that the Times series suggests (and, keep repeating often enough to make sure you believe it, it's not an editorial series, it's a news series) is that religious groups should be brought under the umbrella of the regulatory state to the same extent that other private associations have been. But this would be a catastrophe for religious freedom. If the government is given the power to decide whom religious groups can hire and on what grounds they can fire, or to regulate the contents of their schools and day-care centers, then religious freedom will be destroyed. Pressure groups motivated by bias either against a particular religion or all religions will take just a few months to begin bringing the hammer of the state to bear on the groups that they don’t like. The ultimate solution to the problem that so vexes the reporters of the Times is to make non-religious groups as free as religious ones; in other words, to restore the freedom of association and freedom of contract that we used to take for granted.


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