“I don't believe in an America where the separation of church and state is absolute,” Republican presidential hopeful Rick Santorum declared. “What kind of country do we live in that says only people of nonfaith can come into the public square and make their case?"
Whatever can the former Pennsylvania senator be talking about? How much more in the public square can one get than a closely watched campaign for the nomination as the presidential candidate of one of our two biggest political parties? Not to mention the irony that Santorum made his claim that believers like him are somehow being excluded from the public square on the national ABC News program This Week.
Santorum’s observations were provoked by the latest brouhaha over the role of religion in politics that erupted over the Obama administration’s initial insistence that its new mandatory health care regulations require companies run by the Roman Catholic Church to offer health insurance that covers women’s reproductive services including contraception. The U.S. Council of Catholic Bishops denounced this ruling as a violation of their religious beliefs and an infringement of the First Amendment’s prohibition against laws that interfere with the free exercise of religion.
The Obama administration quickly tried to control the political damage caused by this controversy by artfully claiming that so much money would be saved as a result of women using the services that health insurance companies would cover them at no additional cost. Consequently, the administration argued that the Catholic Church would not be actually paying for health insurance coverage of these reproductive services. Never mind that money saved but not rebated as a lower fee is not really distinguishable from paying for the covered service.
History shows that in the United States conflicts between church and state typically arise over how benefits supplied or mandated by government are distributed. Legal scholar Douglas Laycock has spent a career looking at the interaction between government and religion in the United States. He notes in the 1947 case Everson v. Board of Education that Supreme Court Justice Hugo Black articulated the two chief principles that underlay the tension that state-supplied public welfare benefits produces when they intersect with religious belief.
For the 5-to-4 majority in Everson, Black declared, “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” So far, so good. But Black also argued that government “cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”
In Everson, the Court ruled that reimbursing parents for transportation to and from parochial schools was not a violation of the Establishment Clause of the First Amendment because New Jersey “does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” One critical element noted by Black is that state compulsory education laws required that children attend school. Since parents are required by law to send their children to some kind of schools, then it would be wrong to discriminate against religious parents when it comes to putting them on buses to get there. Looking over the history of First Amendment constitutional conflicts, it is clear that most early court cases arose in the context of state-mandated education.
In the 18th century when the Constitution was adopted, Justice Black’s two principles—(1) citizens cannot be taxed to support religious activities, and (2) the state may not deny tax-financed public welfare benefits to any citizen based on their religious beliefs—rarely conflicted. “In an era with few public welfare benefits,” explained Laycock in his 2006 essay, “Church and State in the United States: Competing Conceptions and Historic Changes,” “No-aid [to religious activities] protected citizens from being forced to contribute to churches involuntarily: it protected the churches from financial dependence on government, and thus from government control.”
But with the relentless expansion of the welfare state the days when churches were protected from financial dependence on government are long gone. In their book, The Challenge of Pluralism, political scientists Stephen Monsma from Calvin College and J. Christopher Soper from Pepperdine University argue, “If government—seeking to strictly follow the no-aid-to-religion doctrine—would run public service programs in a secular manner or if it would fund public service programs of secular nonprofit organizations, but would not fund public service programs of the same or parallel nature of religious organizations, religion would be put at a government-created disadvantage.”
Is it really the case that government and religious programs that seek to feed, clothe, shelter the poor, educate the ignorant, and take care of the sick are in some kind of competition? Only if one assumes that government agencies are engaged in teaching religious or non-religious beliefs as they dispense food stamps, rent vouchers, and vaccines. On the other hand, a cynical public choice analysis might suggest that both churches and government welfare agencies may see themselves in competition when it comes to increasing the number of people who are dependent upon them.
In order to address concerns that religious organizations are “disadvantaged” by competition with secular welfare agencies, recent administrations have devised various programs to shower tax dollars on them. In 1996, President Bill Clinton signed charitable choice legislation that allowed faith-based charities to compete for federal funding of such social services as job training, nutrition, health clinics, drug treatment, and abstinence education. Compassionately conservative President George W. Bush further expanded federal funding of faith-based initiatives and President Barack Obama has basically continued that program. The amount of tax dollars that flow through these faith-based federal initiatives is hard to determine, but consider that the Catholic Charities affiliates received nearly $3 billion in 2010 (more than 60 percent of their budgets) and only 3 percent came from diocesan church contributions.
Of course, providing federal or state funds for a religious group’s welfare activities frees up its other funds so that they can be used for non-secular purposes. “The Court has not been blind to the fact that in aiding a religious institution to perform a secular task, the State frees the institution's resources to be put to sectarian ends,” noted Justice Harry Blackmun in the 1976 case of Roemer v. Board of Public Works of Maryland. Maryland was challenged on First Amendment grounds because it was providing an annual subsidy to private colleges that met certain criteria, in this case, four colleges affiliated with the Roman Catholic Church. Nevertheless, the Court ruled that the state subsidy did not violate the First Amendment, likening it to the tax-financed provision of police and fire protection to churches.
It is clear that First Amendment conflicts will continue to multiply as government mandates and welfare programs proliferate. The fight over insurance coverage of contraception was the result of the Obama administration’s new federal health care mandate covering preventive care services. Another brewing church/state fight is over gay adoptions. For example, Illinois welfare agencies cancelled $30 million in foster care contracts with Catholic Charities for refusing to abide by Illinois non-discrimination statutes and place foster children in gay households. Last year, the Every Child Deserves a Family Act was introduced in Congress; it would prohibit discrimination in adoption or foster care placements based on the sexual orientation, gender identity, or marital status of any prospective adoptive or foster parent, or the sexual orientation or gender identity of the child involved. Conversely, some states have passed legislation allowing religious groups to invoke a “conscience clause” when refusing to place children in gay families all the while receiving state funds to run their private adoption and foster care services.
But there is a way to call a ceasefire in this escalating culture war battle. “Government’s advantaging of the secular over the religious could be avoided if government would simply stay out of a given policy area,” observe Monsma and Soper. But the two political scientists actually think that there is no way to untangle the contentious church/state social services mess into which we’ve gotten ourselves. I think that they are wrong.
In the first place, from a libertarian perspective, government at all levels is interfering far too much with what are essentially private activities. That being said, let’s assume that tax dollars will continue to be collected for the time being and spent on various “public welfare” programs. There is still a way for government to “simply stay out of a given policy area” when it comes to current conflicts involving the First Amendment.