WHY THE CONSTITUTION'S CHURCH/STATE SEPARATION IS VITAL:
Examples From The Faith-based Organizations Initiative To The Taliban

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Aug. 30, 2001

Last week, Afghanistan's Taliban threw foreign aid workers in jail for allegedly proselytizing for Christianity as they distributed food to the needy. Afghans assisting in the feeding effort were also arrested. Both the foreign aid workers, two of whom are from the United States, and the Afghans could be charged with the death penalty for spreading doctrines contrary to the single state religion, fundamentalist Islam.

The arrests and the potential penalties are, of course, shocking to United States sensibilities. That is because the United States rests on the presuppositions that one may believe whatever he or she wants, that the freedom to believe carries with it the freedom to talk to others about those beliefs, and that missionary work typically mixes proselytization with aid.

In contrast, Afghanistan practices the purest form of theocracy—religious rulers are the prevailing rulers, only one set of beliefs may be held by any citizen, and missionaries from other faiths are traitors to the common good. These beliefs are widespread: According to news reports, not only the Taliban, but also the average citizen in Afghanistan supports the aid workers' incarceration and even the death penalty.

The Taliban's recent actions serve as both a reminder and a warning of what happens in a country where state and religion unite.

Making Sure the Establishment Clause Stays Alive

The primary reason the United States has been able to pull off its astonishing range of religious pluralism is the Establishment Clause, contained in the First Amendment of the Constitution. The Establishment Clause prohibits the state from establishing any particular religion and, in turn, impedes ambitious religious organizations and leaders from obtaining sole control of the levers of power.

Peace accompanies religious differences in the United States — unlike in Afghanistan — because here, church and state are held in a balance of power, with neither capable of absolute control over the other. But that does not mean that U.S. religious organizations will forego opportunities to obtain power when the opportunity is presented, or that the government will refrain from pandering to the religious powers that be. Nor does it mean that the Establishment Clause has been honored or respected by every Administration or every church.

Indeed, there is an organized effort by conservative organizations to transform the roar of the Establishment Clause into a whimper. The argument goes as follows: The Establishment Clause was only necessary at the time of the framing; society desperately needs more religion at every level (the government included) right now; and this was always a Christian country anyway, so establishment of the Christian religion does not really present a constitutional problem.

Apart from these orchestrated efforts to defang the Establishment Clause, the grab for power by religious entities in this generation is sobering. A multitude of ploys has been devised. To take one important example, there are laws pushed by mainstream Christian and Jewish organizations that enable religious entities to trump any law, even if it applies to every other similarly situated entity (the federal and state Religious Freedom Restoration Acts).

Other examples can be found in lobbyists' successful efforts to procure exemptions for religions from laws that protect children from serious injury or disability. Or consider, as well, the attempt to transform the equality rhetoric of the civil rights movement into a free ticket for religious organizations to obtain direct government funding for their mission activities.

The Recent Report by the Office of Faith-Based Initiatives

Religious entities' bid for power was most recently illustrated by the White House Office of Faith-Based Initiatives' Report on barriers to federal funding of religious social service agencies. According to the summary provided by Professor John DiIulio, the Office's recently-resigned head, in the Wall Street Journal, the report found significant barriers to funding of grass roots religious social service providers, which revealed an "unlevel playing field."

In a not-so-shocking revelation, the report revealed that federal government social services funds tend to go to larger, established nonprofits, rather than to grass roots religious social service providers. Apparently, it requires a government report to learn that the more powerful the entity, the more likely it is to have its wheels greased in Washington. With whom do they think our representatives are more likely to dine during a given week: the head of the Ford or the Pew Foundations, or the parish priest feeding the homeless within his parish?

But the report refuses to stop at such an explanation. Rather, in DiIulio's words, "the public administration of federal social service programs is irrationally biased against small nonprofit organizations." Here is where the mantra of "secularization" and "religion as martyr" meet their natural conclusion: if religious organizations are not eating from the government's trough, it must be because they are suffering discrimination.

The Value of Separating Church and State

What Mr. DiIulio, and the Bush Administration in general, fail to take into account is the entrenched value of the separation of church and state that permeates American society. It is not discrimination when lack of funding arises from an important constitutional fundamental.

It may be that religious organizations have not been receiving federal funds because their aid programs are in fact missions, and the Establishment Clause forbids the funding of religious missions. It may also be that grassroots religious organizations have not been in line for federal funding because of a shared societal consensus that missionary work is best when it is privately funded — not discouraged, but not governmentally funded either.

The Achilles heel of this Administration, and also of Senator Joseph Lieberman, to be fair, is a failure to honor the wisdom of the Framers, who separated the spheres of power of church and state in order to expand liberty. That is where the lesson of Afghanistan comes in. Where the spheres of power are closely interrelated, religious freedom is at real risk. Madison stated the principle best when he said that forced payment of taxes for Christian teaching is different in degree, but not in kind, from the Inquisition.

DiIulio purportedly quit because the politics of Washington got to him. One must wonder whether the entrenched values of the Establishment Clause also posed a barrier, invisible to those wishing it away, but impossible to scale.


Marci Hamilton, a FindLaw columnist, is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is Hamilton02@aol.com. Her earlier columns on church-state issues may be found in the archive of her work on this site.

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