There has rarely been a more misnamed proposal that the so-called "Religious Freedom" amendment to the Constitution being promoted by Speaker of the House Newt Gingrich and other House members.
There has rarely been a more misnamed proposal that the so-called "Religious Freedom" amendment to the Constitution being promoted by Speaker of the House Newt Gingrich and other House members.
Being an adherent of the "if it ain’t broke, don’t fix it" school of thought, I tend to look askance at attempts to amend the Bill of Rights, but the language of the amendment certainly seems harmless. It provides that "neither the United States nor any State shall deny any person equal access to a benefit, or otherwise discriminate against any person, on account of religious belief, expression or exercise. This amendment does not authorize government to coerce or inhibit religious belief, expression or exercise." To the extent such language is read as a requirement of government neutrality toward religious belief, it would seem to confirm and restate current law, which already requires such neutrality
If that were, in fact, the effect of the language, civil libertarians would be among the first to applaud; far too few of our citizens understand that the First Amendment religion clauses prohibit both government coercion of and government interference with religion. Any reaffirmation of limits on government action would be welcome.
Such is not the intent or effect of this proposal, however.
The word "person" does not mean "individual citizen" as non-lawyers might suppose. For purposes of the law, "person" includes organizations, corporations, and churches. Passage of this amendment would thus require government to fund religious institutions. Failure to do so would be denial of a "benefit" under the language of the amendment.
Funding public schools without funding parochial ones, for example, would be discriminatory.
One need not be an opponent of religion or parochial education to find this prospect distasteful. Quite the contrary. What government funds, government controls. If tax dollars are used to support churches, religious schools and other sectarian institutions, there will be financial audits, there will be examinations of school curricula and test scores and admissions policies.
The proposed amendment would lead to government entanglement with a wide variety of religious institutions and organizations. Courts would be faced with the prospect of totally rewriting the law of church and state, reopening a multitude of arguments pitting the legitimate interests of some religions against the strong beliefs of others. Would the government be able to deny tax dollars to religions preaching violence? Using psychotropic drugs? What of those whose beliefs offend our American commitment to civil rights — that require subordination of women, or African-Americans? Under the First Amendment, churches have an absolute right to discriminate if their beliefs require such behavior — but under the First Amendment, government is not using the tax dollars of the disfavored to support those practices. Worse still, government would inevitably have the power to decide whether any particular faith is a "real" religion, entitled to the "benefits" (read entitlements) at issue.
For that matter, at a time when politicians of both parties are questioning the wisdom of a wide variety of federally created entitlements, this innocuous-sounding language would create the granddaddy of them all.