A Rob Boston, of Americans United for Separation of Church and State, at AlterNet:
5 Ways Churches Get Preferential Treatment and Benefit from Legal Loopholes
That is just the header. Allow Mr Boston to explain further. Or, more accurately, dig:
Many conservative religious leaders insist that houses of worship in America today struggle under intense persecution. To hear some of the Catholic bishops tell it, religious freedom may soon be a memory because they don’t always get their way in policy debates.
It would be highly ironic if the United States, the nation that perfected religious liberty and enshrined it in the Constitution’s First Amendment, had become hostile to the rights of religious groups…
“The nation that perfected religious liberty?” If someone Americans United might label a “right-wing zealot” made such an unsupported and unscholarly assertion, AU would have laughed him out of the room. After all, objectively, the country across the Channel — France — might have something to say about that claim.
Even here in Established church England, the Church of England seemingly spends much of its time apologizing for its Establishment. Its attacking Catholicism, or any other faith, is long a thing of the past. A gentle jibe has been that the current (and soon to retire) Archbishop of Canterbury may know more about Islam than about Christianity.
Indeed a review of the past year appears in order regarding the “perfected” U.S. Following February 10, we were stunned to witness a national anti-Catholic projectile vomiting bout of a sort the country had not seen since JFK in 1960, and perhaps not even since the Klan in the 1920s. True, that mania has since died down, but it having burst forth so grotesquely at all demonstrated that irony does not prevent something from coming, or being brought, about.
Why did it happen? It came to the surface largely in reaction to Roman Catholics’ having wondered aloud about the dangers to “free exercise” of what is becoming law starting today. It sees a Health and Human Services contraceptive “mandate” go into effect which, given its reach and aim, will constitute the largest single federal religious conscience trespass since the Bill of Rights’ ratification.
It did not have to be like this. The “mandate’s” opponents are not claiming that the State may not tax to support its desire to see to it that “free” contraceptives are available. Rather they assert the State is crossing a “free exercise” Rubicon in coercing tax-exempt religious entities into helping fund a State initiative those entities consider immoral.
It is the “mandate’s” undercutting and narrowing of the 1st Amendment’s “free exercise” clause that most worries Roman Catholics and others. Mr Boston and his organization glibly wave aside any protestations as inconsequential, overblown, or evidence of some clerical coup in the making. Claiming any of that, or even all of that simultaneously (regardless of how ridiculous), is their free speech right — the latter nonsense especially.
Yet if that State policy were supported by taxes, any tax-exempt group would naturally avoid enforced participation. That would have meant no “free exercise” infringement; but evidently such clearheaded reasoning is too complicated for Americans United, or for the current administration. Mr Boston seriously also argues it is churches that are out of line in demanding “free exercise” be respected as it had been since 1791, and not the State in its unprecedented 2012 approach.
…In reality, U.S. law is honeycombed with examples of preferential treatment and special breaks for religion. Some of these practices may grow out of the First Amendment command that the “free exercise” of religion must not be infringed. Others are traditions or were added to the law after lobbying efforts by religious groups.
The 1st Amendment as “legal loophole?” In reality Americans United is usually quick to take to the nearest microphone to condemn any failure (in their opinion) in others to “understand the Constitution.” It has recently set its sights on a non-academic most had never heard of, but who Americans United seemingly considers one of the greatest threats to historical scholarship since Parson Weems.
So it is also highly ironic how Mr Boston’s piece here bases its polemics on a premise that is itself constitutionally illiterate. Because American law is not, as Mr Boston argues, “honeycombed with examples of preferential treatment and special breaks for religion.” For that notion rests squarely on the assumption freedom is parcelled out at the State’s whim.
Certainly Americans United’s champions on religious liberty, Jefferson and Madison, never even implied any such thing. Faith is given a wide berth by the State in order to avoid the State trampling on the 1st Amendment’s “free exercise” clause. The Bill of Rights is not about liberties generously conferred upon us from on high by the State. It outlines zones of sovereignty the State is not supposed to invade.
Essentially Mr Boston has it backwards. Encountering that fundamental misunderstanding, it would be easy to wash one’s hands of such a blog post. But something else does remain worth addressing:
Here are five ways American law extends protections and preference to houses of worship…
Stemming as they do from his wrongheaded premise, those “five ways” shared by Mr Boston are therefore unnecessary to bother fisking. However, what surfaces in them is also apparently an emerging sore point we are seeing in various media. So it is worth responding to here:
(By the way, tax exemption for churches is not a constitutional right. The Constitution says nothing about tax exemption for anyone. The practice has long roots in Western culture, but it’s not enshrined in the Constitution.)
It appears tax-exemption — which his organization has — is by Mr Boston’s lights a “preference”. But if the State taxes houses of worship, it can naturally also exert political control, or even force churches out of existence. That is why the State steering clear of taxing them is a fundamental “free exercise” necessity.
So the State staying out of religion is decidedly, again, not the same thing as “preferential treatment and special breaks for religion.” The 1st Amendment comes, well, first: Congress shall make NO law… — and to tax is definitely to make law. So when the legislative branch gets itchy and feels it just must make a law touching on “free exercise,” courts reasonably demand it be demonstrated it had a constitutional reason to make one.
The 1st Amendment also protects Mr Boston’s free speech about what makes for a State engaging in “intense persecution”. It also protects this writer in noting that, yes, we are not at the Henry VIII raiding the monasteries stage quite yet. Then again, historically we all also know persecutors almost never think of themselves as persecutors.
But when I hand my church a “free exercise” donation on Sunday morning, I expect that (post-tax) money to go towards funding my church or its charitable endeavors, so in my opinion it is persecution for the executive branch to decree any of that money I have given be siphoned off to fund State initiatives. Taxes are for state initiatives. The State has no more right to “mandate” some of my church offerings help underwrite the State’s contraception policy than it does to “mandate” those donations pay for its aircraft carriers.
Like free speech, U.S. freedom of religion does NOT exist on State sufferance. The evidence for that is overwhelming. So this humble request stands:
If Mr Boston really thinks so, he is free to cite the scholarly sources that share that view and on what basis they argue it. We would look forward to seeing them. Or he should perhaps consider retaking Poli Sci 101.