Kurt Vonnegut wrote a haunting short story about a society that put such a premium on equality that no person could outperform another. The protagonist was a dancer who danced with an 80-pound burden to insure he did not dance better than anyone else.
Vonnegut’s story came to mind as I read a Sixth Circuit U.S. Court of Appeals decision in Cutter, a case the Supreme Court will hear to decide the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000. The court found that protecting the religious liberty of prisoners violates the Establishment Clause because government must be neutral toward religion.
The Sixth Circuit wasn’t interested in the underlying facts. It didn’t care that religious prisoners are often denied access to meals that meet religious dietary standards or that access to chapel services and literature are used as weapons by prison guards to obtain leverage with prisoners. The Sixth Circuit didn’t consider that lower court judges can differentiate between legitimate and fraudulent religious claims.
Closer to home, Azuza Pacific University, California Baptist University, Oaks Christian School and others are in the California Supreme Court seeking to obtain inclusion in a program that permits them to issue tax exempt bonds. The Court of Appeals wrongly ruled that such a program provides public financial aid to religious schools in violation of the California Constitution. In fact, tax exempt groups issuing bonds pay the administrative costs of the program, and receive no public funds.
On appeal, the schools go too far by claiming that religious schools must be treated the same as all other schools for purposes of both benefits and burdens. Government neutrality toward religion, they say, means that even if the tax exempt bond scheme involves public funding of religious schools, such funding is required by the Free Speech and Free Exercise Clauses, and permitted by the Establishment Clause.
If the Christian schools are right in stating they are entitled to the same benefits and burdens as other schools, including funding, then they should be prepared to teach evolution as scientific fact and to avoid any mention of Creation. They should prepare to teach “safe sex,” and that homosexuality is an acceptable lifestyle. Neutrality is a two-edged sword. Christian schools want access to public funds, but they don’t want to be bound by public rules.
In Colonial America, churches were “established” by law. Ministers were licensed, and taxation funded their salaries and church schools. This system was replaced by voluntary funding of religion, as Federal and state constitutions were amended to prohibit religious “establishments.” The free exercise of religion could be assured because the state did not “establish” the church.
In 1990, “neutrality” theory decimated the constitutional protection for the free exercise of religion. Religious beliefs and practices can only claim protection against unequal treatment. Everyone must conform to the laws as long as they don’t single out religious beliefs or practices for unfavorable treatment. The same conformity is now being offered as the new standard for the Establishment Clause. Neutrality theory reduces religious liberty to majority rule. So long as the majority are prepared to “tolerate” your religious beliefs and activities, you are free. Hold a religious belief or practice — like Sabbath observance — that is out of the mainstream and you have to obey the law like everyone else. Religious liberty? Guess again.
