Separation of Ice Cream Parlor and State?
“Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”
–Everson v. Board of Education, 330 U.S. 1 (1947)
I’ve been chronicling the increasing concern over lackadaisical enforcement of the Internal Revenue Code’s rules for the charitable exemption enjoyed by churches and other religious institutions.
Now the New York Times has a major exposé of another incredible aspect of religious exemption — the regulatory waiver:
An analysis by The New York Times of laws passed since 1989 shows that more than 200 special arrangements, protections or exemptions for religious groups or their adherents were tucked into Congressional legislation, covering topics ranging from pensions to immigration to land use.
…
And the new breaks come at a time when many religious organizations are expanding into activities — from day care centers to funeral homes, from ice cream parlors to fitness clubs, from bookstores to broadcasters — that compete with these same businesses and nonprofit organizations.
This is, of course, absolutely outrageous — and patently unconstitutional (the Rehnquist Court notwithstanding).
Granted, libertarians generally bring a “presumption of impropriety” to all forms of government regulation. But this concern ought always to be trumped by the libertarian demand for equal treatment under law (I would say “equal protection,” but regulatory regimes don’t “protect” so much as they burden).
It’s one thing to say that, e.g., a Roman Catholic parochial school should be allowed to hire only Roman Catholic teachers or that a Mormon hospital can limit itself to Mormon nurses. But a blanket exemption from any, or every, regulation — in secular activities — is to turn the First Amendment on its head. It is no less than an overt constitutional perversion.
The whole point of the Establishment Clause is that laws should operate independently of religion, not that religion should operate independently of laws. When a law treats everyone equally (and rationally), then there is no discrimination against religion — and neither is there a favoring of religion. Church. State. Separate. How is this a difficult concept?
Granting religious exemptions to regulation of activities that have nothing to do with worship, on the other hand, is precisely what the First Amendment, read sanely, forbids. If a regulatory framework is viewpoint-neutral, if it is meant to serve some neutral and temporal “public purpose,” then what rational basis can there be to haphazardly exempt some people based on their faith? It makes no legal sense whatsoever; it can only serve a political end.
Separation of church and state does not suggest, and certainly does not require, “separation of day care and state” or “separation of hospital and state” or “separation of ice cream parlor and state.”
Less regulation is almost always a good thing. Preferential exemption from regulation based on religion is never a good thing. It really is that simple.
More thoughts from To the People, Diminishing Returns.
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