Separating Church and State Money: If Religious Institutions Want to Be Left Alone, They Should Stop Begging for Alms from the Government
Bailey, Ronald, Reason
"I DON'T BELIEVE in an America where the separation of church and state is absolute," Republican presidential hopeful Rick Santorum declared in a February 26 interview with ABC's This Week. "What kind of country do we live in that says only people of nonfaith can come into the public square and make their case?" What is the former Pennsylvania senator talking about? Doesn't appearing on a national news program while seeking the presidential nomination of a major political party qualify as making your case in the public square?
Santorum's comments were prompted by the latest brouhaha over the role of religion in politics. In January the Obama administration unveiled new health care regulations that require organizations 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 the mandate as a violation of the First Amendment's ban on laws "prohibiting the free exercise" of religion.
The Obama administration tried to limit the political damage by claiming that covering contraception would, on balance, save insurers money by reducing claims related to pregnancy and birth. Hence insurers could offer the coverage at no additional cost to them or their customers, meaning the Catholic Church would not actually have to pay for contraception. That argument is bunk: money saved but not rebated as a lower fee is not really distinguishable from paying for the covered service.
As the contraception controversy illustrates, conflicts between church and state in this country typically arise from the way that benefits supplied or mandated by the government are distributed. University of Virginia law professor Douglas Laycock, who has spent a career looking at the interaction between government and religion, highlights Supreme Court Justice Hugo Black's formulation in the 1947 case Everson v. Board of Education.
Writing 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." The Court therefore ruled that New Jersey's policy of reimbursing parents for bus transportation to and from parochial schools did not violate the First Amendment's ban on "an establishment of religion" because the state was merely supplying a general service to all schools.
When the Constitution was adopted in the 18th century, 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 his religious beliefs--rarely conflicted. "In an era with few public welfare benefits;' Laycock explained in a 2006 essay from his collection Religious Liberty, "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. …