Phi Beta Cons

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The Times Attacks Religious Freedom


The Times is in the midst of one of its epic, multi-part “examinations” of an issue — this time examining the extent to which government is “accommodating” or giving “special breaks” to religious organizations by granting them exemptions from licensing requirements, employment discrimination laws, land use ordinances, and other regulatory schemes.  The first part of the series (a look at licensing laws and land use regulations) is here, and the second part of the series (a look at exemptions from employment discrimination statutes) is here (link).  

So far, the thesis of the series is that far from there existing a “war on faith” in this country, faith institutions enjoy unprecedented public favor — mostly through exemptions from generally applicable regulations.  According to the critics quoted by the Times, these exemptions represent a real breakdown in the so-called “separation of church and state.”  Left unexplained, of course, is how greater state oversight in the internal workings of religious organizations actually fosters “separation.”  In the first part of the series, the Times even goes so far to infer that churches may be bad citizens, since they use fire and police protection that they don’t pay for (but of course every member of the congregation does).

It is difficult to rebut a multipart series in one blog post, but so far the series has featured the following fallacies:

-Attempting to prove the existence of a problem by selecting only the most heartstring-pulling examples of potential abuse and then giving only a fraction of story space to defenders of the offending policy.  For example, the first article spends a great deal of time noting that in Alabama religious day cares are exempt from state licensing requirements that had been enacted  because of “conditions that had put young lives at risk.”  Left unsaid is whether religious day cares had been part of the problem that led to the regulations.  But deeper in the article, we see that the centerpiece example of this allegedly overwhelming national trend of “special breaks” exists only in 12 of the 50 states.  One of the states is Alabama, however, and I suppose that helps Upper West Siders tsk tsk over their coffee at those televangelist-loving, child-hatin’ rednecks down south.

-Barely mentioning (after all, it takes lots of story space to frame the tear-jerking stories) that many of these so-called “special breaks” have resulted only after the government expanded its activities and regulation into areas traditionally encompassed by fundamental constitutional rights.  After all, the free exercise clause is only the first liberty mentioned in the Bill of Rights.  The Times notes that protections for religious land use defy “longstanding public demands for open space or historic preservation.”  Left unsaid is the tension between intrusive zoning laws and the even more longstanding constitutional protections for property rights and religious expression.  In fact, there is an avalanche of evidence that so-called “public demands” for intrusive zoning regulations had led to systematic majority suppression of free speech and expression, which is exactly the circumstance for which the First Amendment exists.  Perhaps the Times should have spent more time discussing why the First Amendment must always bow to the local zoning and planning commission rather than merely assuming that it should and plowing ahead with the story.  

-Calling a legal doctrine a “special break” when in fact the exemption merely grants religious groups equality with other expressive organizations.  This is where the series begins to intersect with issues that are being litigated at campuses across the country.  In part two of the Times’s series, the paper focuses on laws that permit religious employers to “discriminate” on the basis of religion, even imposing religious requirements on janitors and secretaries (not just pastors and priests).  The Times calls this a “special break,” and applies the same reasoning as the universities that are systematically ejecting religious groups from campus on the grounds that it is unacceptable for religious organizations to “discriminate” (reserve membership or leadership for those who share the group’s faith) on the basis of religion.  Yet these “generally applicable” nondiscrimination provisions are as notable for what they do not prohibit as for what they do.  Most nondiscrimination regulations do not prohibit discrimination on the basis of ideology or political affiliation thereby allowing secular expressive organizations to limit their membership, leadership, and employees to those who share the goals, mission, and values of the group.  Should secular organizations enjoy greater rights to protect the integrity of their own mission and message?  Is it a “special break” to make sure that Campus Crusade for Christ enjoys the same meaningful right to free association as the Sierra Club?

I suppose it is no surprise that the Times would write a multipart series designed to cast aspersions on the free exercise of religion.  After all, in the series they get to skewer two favorite enemies at once: individual rights and religious conservatives.  But this little blog entry will most likely fall on deaf ears.  If history is any guide, a multipart Times series aimed against the villains of the cultural left equals a Pulitzer Prize.


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