Oh, that First Amendment...

Fr. Neuhaus in First Things with a piece on those troublesome sixteen words...

Richard John Neuhaus writes:

Those sixteen words have taken a terrible beating in the past fifty years. For most of our history, they occasioned little controversy. That was when our culture and our polity seemed to be on more or less amicable terms. There are several possible datings of the change, but I think we can settle on the Supreme Court decision of 1947 Everson v. Board of Education, as the beginning of what would later come to be called the culture wars. That’s when the Court decided that ours is a secular society and began, by pitting the polity against the culture, a determined effort to create a naked public square.

The sixteen words, of course, have to do with the first freedom of the First Amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The Religion Clause—note that it is one clause with two provisions, no-establishment and free exercise—has been turned upside down, with the result that free exercise, which is the entire purpose of the clause, is again and again trumped by no-establishment. In recent years, the Supreme Court has been increasingly candid about the incoherence of its Religion Clause decisions, admitting that they are riddled through with contradictions. There is reason to believe that the Court just may be ready to return to the original meaning of the text, which is to protect the free exercise of religion.

Meanwhile, however, the battles continue. Just yesterday, the New York Court of Appeals ruled that religious institutions must cover contraception services in their employee health plans. The appeal of Baptist and Catholic groups for an exemption was denied. The ruling clearly burdens the free exercise of religion for those who believe that paying for artificial contraception is complicity in evil. Defenders of the decision say the decision only marginally inhibits the free exercise of religion. But free exercise means free exercise. When the exercise of religion is inhibited, it is not free exercise.

Last week the New York Times ran for four days in a row front-page stories, followed by two full inside pages each day, attacking religious exemptions from taxes and government regulation and control. The stories were written by Diana B. Henriques, and she has another big story on the same subject in Friday’s business section. This is an extraordinary amount of space for the Times to devote to anything. Under executive editor Bill Keller, this is known as the “blast” or “barrage” tactic when the Times understands itself to be launching a major campaign. This campaign is a take-no-prisoners assault on tax and other exemptions that historically have been deemed essential to the free exercise of religion.

The focus of the stories is on real or alleged abuses of religious tax exemptions. There is no shortage of such abuses, religion being as prone to scams and chicanery as any other human enterprise. But the Times is clearly after more than the correction of abuses. It is the very idea of religious exemptions that is under attack. Among the targets of the stories is the “faith-based initiative” of the Bush administration whereby, according to the Times, exemption from taxes and government regulation give religious organizations an unfair advantage.

The first director of the faith-based initiative, John DiIulio, writes in The Weekly Standard:

Times readers might be invited to imagine an America in which all of those ostensibly favored faith groups disappeared tomorrow. Who would suffer the most, and who would have to pay to replace the social services that they now provide? For instance, pick ten big cities, and ask how many low-income non-Catholics (Title I students, Medicaid-eligible patients, etc.) are served by Catholic elementary schools, high schools, colleges or universities, and hospitals? Next, try to figure out who is subsidizing or “accommodating” whom: How much would it cost to provide the same services without religiously mobilized volunteers and institutions in the mix? Studies being conducted by me and others at the University of Pennsylvania and Harvard University aim to estimate the “replacement value” of such Catholic “civic assets.” Stay tuned. . . .

Similarly, while federal funds finance much art and architecture that is patently offensive to many religious believers, and while federal dollars routinely pay to preserve other historically or architecturally significant properties, grand old churches, synagogues, mosques, and other religious properties must go begging. Hurricane Katrina destroyed many sacred places frequented by religious people who were the first to supply basic services to the region’s victims. Still, in 2005, Congress barely passed new legislation providing funding to Catholic and other religious schools that had selflessly opened their doors to elementary and secondary students who had been displaced by the floods.

And, as I know from my own travels, in many cities, faith groups that seek to open after-school programs, run shelters, or otherwise serve their needy neighbors are still often kicked to the civic curb by local public housing authorities, state judges, and other government officials. The politics behind these actions is not always pretty. Big secular nonprofits and well-positioned for-profit firms–professional service delivery organizations that for decades have “won” government contracts while avoiding independent performance audits–suddenly be come interested in church-state issues when their oligopolies are threatened by competition from local faith groups. In many cases, the faith groups have been doing the work all along in return for public-funding crumbs from the “professional” groups’ tables. Much the same game has too often, and for too long, been played against grassroots religious groups by large private foundations’ favorite grantees.

In addition to the practical and political questions of elementary justice addressed by DiIulio, there are deeply principled reasons why religious exemptions are essential to our constitutional order. A classic text here is Dean Kelley’s 1977 book, Why Churches Should Not Pay Taxes. The power to tax is the power to control. The practical applications of exemption are necessarily monitored by IRS and other government agencies, but the principle of exemption is deeply entrenched in law, and it is not likely that the Times campaign will change that. But it will not be for lack of trying.

The editorial purpose glaringly evident in the “news” section of the paper is backed up by the page that is admittedly editorial. “Religious institutions should be protected from excessive intrusion by government,” the editors say (i.e., Congress shall make no law respecting an excessive prohibition of religion). But the existing system of exemption, they continue, “amounts to an enormous subsidy for religion, in some cases violating the establishment clause of the First Amendment.” The editors are also exercised that religious institutions are exempt from regulations having to do with religious and gender discrimination in hiring and promotion. But the key point, invoked over the years by opponents of free exercise, is that tax exemption is actually a government subsidy.

The underlying, and nascently totalitarian, assumption is that everything in the society belongs to the state and should be under state control. Government exemptions from tax and control are a privilege granted, not a right respected. From which it follows that an exemption is, in fact, a subsidy. This is a long way from the Founders’ understanding of the independent sovereignty of religion that the government is bound to respect.

The editors write, “Like most special-interest handouts, these privileges exist in large part because the majority is not aware, or is not being heard.” No, these are not privileges but rights, and the majority, I expect, is aware and approving of the government’s respect for the free exercise of religion. Again, where free exercise rights are abused, the abuses should be remedied. The courts and legislatures are regularly involved in addressing these questions. But make no mistake about it: The Times is committing its considerable resources and influence to an all-out assault on the free exercise of religion.

One may reasonably assume that this would not be the case without the full support of executive editor Bill Keller. It is hardly incidental that Keller has, by his own admission, a religion problem. He calls himself a “collapsed Catholic,” and in a 2002 article in the Times (subscription required) he rails against the Church for having “replicated something very like the old Communist Party.” He says, “The Vatican exists first and foremost to preserve its own power.” The pope “has carefully constructed a Kremlin that will be inhospitable to a reformer.” Seminaries have been turned “into factories of conformity.” “What reform might mean is something I leave to Catholics who care more than I do.” But Mr. Keller obviously cares very much about the struggle “between the forces of tolerance and absolutism” in “the church that gave us the Crusades and the Inquisition.” It is not surprising that “a fraternity of aging celibates” opposes “the equality of women, abortion on demand, and gay rights.” He ends by wondering “how long faith withstands such a corrosive rain of hypocrisy.”

There is no anti-Catholic venom like the anti-Catholic venom of a collapsed Catholic. As I say, the Times’ campaign against the first freedom of the First Amendment is not likely to have much effect. It is yet another instance of the paper’s penchant to pander to the prejudices of a readership perplexed by the vibrancy of religion in American life. If the Times was half as important as it thinks it is, it would be twice as important as it is. Nonetheless, some attention must be paid.