Now that Christmas has morphed into the “holiday season,” Christmas vacation into “Winter Break,” etc., this is a good time to ask whether the state can discriminate against religion.Thoughtful, intelligent people seem to think so: Dahlia Lithwick here (my reply to which is here); Nate Oman here; and my old preferences jousting partner and buddy Garrett Moritz (to whom I owe the Oman reference) here.

Lithwick’s piece was uncharacteristically sclerotic (“Of course chasing religion from the public square is hostile. The point is that it's the only means of avoiding a theocracy”), but both Oman and Moritz make reasoned arguments that the state’s behavior toward religion is not, or should not be, governed by a neutral non-discrimination standard.

In discussing the question raised by the current case for Locke v. Davey — does a state violate the First Amendment by refusing to provide scholarships for seminary education when it does so for non-religious training? — Moritz comments:

[although] a state certainly could distribute scholarship funds neutrally and permit individuals to use them for religious education if they wished, that is not the same as requiring the states to do so. That a right exists (here, religious freedom) does not always mean that the state has to decide between funding the exercise of the right and funding nothing, even though the state certainly would be free to fund the exercise of the right if it so wished.

the Supreme Court [has] turned the Free Exercise Clause into an anti-discrimination norm. This shifted the focus of religious freedom from the private actions of individuals to the public actions of the state. We no longer ask the question of whether or not a person's private religious observances are being burdened or criminalize[d].... Instead we look at what the government is doing and fret about whether it is being neutral or discriminatory.

Still, there is something fundamentally troubling about an argument that the bar against the state establishing religion or interfering with its free exercise does not require it to act in a neutral, non-discriminatory manner toward religion. Such an argument has trouble responding to a point Justice Scalia made in the Locke v. Davey oral argument, as noted by Lithwick: “if the state can constitutionally discriminate against all religious study, it could constitutionally discriminate only against, say, Jewish studies.”

Moritz and Oman might reply that that would be impermissible, not because it is discrimination but because it would amount to an impermissible state preference for one religion over another, and that would violate the bar against establishment. But what religion would be established if the state gave aid to all religious groups except Jews? In short, if the state has no obligation to treat all religions, and non-religion, in a neutral, non-discriminatory manner, excluding one religious group from benefits voluntarily extended to others would seem to lie well within its discretion. So, for that matter, would a university’s promoting “diversity” by awarding benefits and burdens in the admissions process based on religion.

Current tax law provides tax exemptions to organizations that are “religious, charitable, or educational.” Would it be permissible to remove all religious organizations from that benefit, i.e., to provide exemptions for secular private charities and schools but not for those that are religious? Could a city refuse to provide police and fire protection to church property? After all, no such policies would actually prohibit the free exercise of religion; they would simply remove public financial support from it. Absent an obligation to treat religion — both religion in general as compared to non-religion, and all religions individually — in a neutral, non-discriminatory manner, it’s hard to see what principle would prevent such clear abuses. [This paragraph added 12/25/03 10:25AM]

In my view a policy that discriminates against all religions by excluding them from benefits provided to the non-religious offends the free exercise principle just as much as a policy that favors one religion over another violates the principle that prohibits establishment. And neither of those principles makes sense if they are divorced from the principle requiring government to act in a neutral, non-discriminatory manner.

UPDATE –

Garrett Moritz, as usual, makes a strong and cogent argument in a comment to this post for the view that the Constitution, and our history, require not neutrality but special treatment for religion. In fact, he makes such a good argument that I decided to reply to it here, above ground, rather than buried in the comments below. Before proceeding, however, do read his remarks.

Garrett’s defense of making an exception to the ban on sale or distribution of alcohol to minors so they can participate in Catholic Communion is a perfect example of “free exercise” requiring not neutrality but special treatment for religious practices. This willingness to make exceptions for religions to laws that apply to everyone else has, as Garrett argues, an ancient and honorable tradition. Other classic examples are Wisconsn v. Yoder (1972), in which the Supremes upheld the right of an Amish couple to refuse to send their children to school beyond the eighth grade, despite a valid school attendance law that applied to others. Similarly, in Sherbert v. Varner (1963), South Carolina was required to pay unemployment benefits to a Seventh Day Adventist who was fired for refusing to work on Saturday. The Baptist Joint Committee on Public Affairs (one of many organizations who adopt this view) thus is on solid ground in asserting that free exercise “means giving religion special treatment under the law to accommodate religious practices.”

There are many cases that support this special treatment argument, just as there are many that reach the opposite conclusion. Territories in which Mormons were plentiful were required to outlaw polygamy as a condition for becoming states. More recently but in a similar vein, Employment Division v. Smith (1990) held that Native Americans could not receive an exemption from the laws against the use of peyote even for a religious practice. Indeed, Justice Scalia, who wrote that opinion, defends across the board neutrality with the fervor of a religious crusader.

It is no secret by now that I am mightily attracted to the neutrality doctrine, but at the same time Garrett’s argument (and it is, of course, not just his; he is in very good company) has a great deal of historical, legal, and common-sense support. This is a complex area where I’m not far beyond the stage of agreeing with the last argument I’ve heard.

Nevertheless, I’m happy to say that I still think Garrett is wrong, even according to the lights of his own argument. Insofar as he is right, he has established (if you’ll pardon the expression) that there are occasions where (quoting now from his comment below) “the religion clauses should actually require discrimination” to protect religious practices. Maybe so. But even if true, this does not come close to justifying discrimination against religion or religious practices, to placing burdens on religious practice that identical secular practices are allowed to escape. And that question, after all, is the central issue in Locke v. Davey, with which this discussion began.

I believe it would be somewhere between hard and impossible to construct a compelling historical argument supporting the notion that the state has, or should have, discretion to single out religious practices for special burdens not placed on similar secular ones. One should never underestimate Garrett’s ability in areas like this (after all, he also makes good arguments for racial preferences), but if he were to succeed with the argument that the right to discriminate for necessarily includes the right to discriminate against, the effect, at least in my case, would be to solidify and confirm my innate preference for applying a neutral, non-discrimination standard in all cases.

According to an article in the Washington Times, Texas Democrats are taking their “last stand” against the long-awaited and hard fought redistricting bill that, if it is approved, will in all likelihood lead to the involuntary retirement of some senior Democratic representatives.

Redistricting is almost always a partisan mess. It has always been so, and unless the courts suddenly discover a constitutional right that bars “taking party into account” it will always remain so. But, perhaps because most things in Texas are bigger, the Texas redistricting mess (including the frequently fleeing Democrats high-tailing it out of state) is bigger as well.

I believe there are reasonable arguments that mid-decade redistricting — even when, as in Texas, it would be the first redistricting by the legislature — is bad policy, just as I believe that pressing partisan advantage to extreme limits is not good; the long-term rancor that it generates may well undermine the short-run gains. Those, however, are not arguments that it is barred by constitution or statute.

The absence of any strong argument that mid-decade partisan redistricting is per se illegal, in fact, has led the Texas Democrats to trot out their tried and true (well,maybe not true) one-argument-fits-all-cases argument that making the Texas congressional delegation more closely resemble the partisan voting pattern of Texas would be “unfair to minorities.”

Listen to Rep. Martin Frost, a leader of the “livid” Democrats:

Mr. Frost, whose district has been carved to pieces, was equally livid last week. He is the senior member of the Texas congressional delegation.

“President Bush should hope the courts rescue him from going down in history as the president whose Justice Department gutted the Voting Rights Act,” Mr. Frost said.

Frost is Jewish. Maybe he and the Democrats will argue next that redistricting is anti-Semitic.

[The following added 12/25/03 10:45AM]
There are over 100,000 Jews in Texas, after all, and Frost may well be the only Jewish representative. (Look at them here; no immediately probable Jewish names leap off the list.) On the other hand, if Frost is not the only Jew, then Jews are vastly overrepresented in the Texas congressional delegation, and something should no doubt be done about it.

Dave Huber of Hube’s Cube sends word of a site, Debating Racial Preferences, that has collected and linked interesting information and arguments about racial preferences.

This post is really, ultimately, about the serial comma and the need for clear rules to avoid confusion, or worse. But that lesson can be taught not only by the grammatical construction I’m about to discuss but also by its context and occasion, to which I turn first.

This brings us — hold your hat and watch your wallet — to the Ward 8 Democratic Committee in what J.Edgar Hoover used to call the “Seat of Government,” i.e, Washington, D.C. About two weeks ago Mary Cuthbert, the first vice president, called Kirsten Burgard “poor white trash.” When Burgard, understandably, objected, Cuthbert repeated that “You’re still poor white trailer trash.” Burgard, by the way, is the only white on the Ward 8 Democratic Committee.

Cuthbert’s comment didn’t go over too well, and there were even some calls for her to resign. She, of course, refused, and the Ward 8 Democrats decided to move on and so shelved the demands for her ouster, which left quite a few Democrats discouraged. Phil Pannell, for example, a past president of the Ward 8 Democrats, remains offended:

What hypocrisy to act as if this thing will just go away on its own. Never in my life did I think I'd witness such an outrageous put-down of a white person just because of her race at one of our meetings. Besides, Mary is a Roman Catholic, and the last time I checked the pope wasn't looking like Shaka Zulu

The two women sat alone in the children's section of a library in Southeast Washington on Saturday: Kirsten Burgard, a white woman who had been referred to as "white trailer trash," and Mary Cuthbert, the black woman who had made the offensive remark.
....
The occasion of this breakthrough was the Ward 8 Democrats' annual Kwanzaa celebration, an African American- inspired ritual of spiritual renewal. Those who gathered at the Washington Highlands Library recommitted themselves to ....

Again, how many principles are listed here? Maybe six, if “creativity and faith” are one principle, like “collective work and responsibility.” Or maybe even five, in the not at all far-fetched notion that “purpose, creativity and faith” are one principle. The correct answer, of course, is seven, but there’ s no way to determine that by simply reading the sentence.

But if you think that list as written is confusing, imagine for a moment that you are an editor, or a teacher reading a student paper, and you came across that list without even the faint guidelines the WaPo provides its readers. What, that is, if you came across this unpunctuated list and you had the responsibility of deciding where to put the commas: unity self-determination collective work and responsibility cooperative economics purpose, creativity and faith. No way to do it. You’d have to know not only that there are seven principles but also what they are.

The tradition of newspapers dropping the serial comma (the comma before the last “and” in a series of items) originated in the desire to save a valuable space in their narrow columns. Newspaper style has been copied by those whose approach to punctuation is to throw a bunch of commas at a page and let them land where they will, as well as by those who argue that most of the time things are clear, and on those occasions where the absence of a serial comma might lead to confusion (which happens frequently when individual items in the series are themselves joined with an “and” — “collective work and responsibility,” “creativity and faith” ... oops, that last was two items, not one) they simply throw one in as needed. Thus, for these latter loose grammarians, the “rule” is ... don’t use a serial comma, unless you need one. (As though there were a shortage of them)

This simply won’t do. The attraction, appeal, even beauty of rules is that they remove discretion, which is to say they increase efficiency by reducing the number of decisions that have to be made every time you put finger to keyboard. A “rule” that makes you stop and think what to do every time you have a series, in addition to leading to reader confusion when (as in Milloy’s column, you are your editor don’t stop to think), is simply no rule at all.

Joyce Scott, another member of the Ward 8 Democrats, instinctively grasped this point when she asked: “How can we tell those kids at Ballou High to behave if we go around ignoring the misbehavior of adults -- especially adults in positions of leadership?”

How indeed. Actually, you do it the same way you do when you explain that discrimination on the basis of race is wrong ... except when it isn’t. Unfortunately, Democrats have a lot of experience doing this.

Not only does Alan Wolfe seem like a nice guy, he actually is a nice guy. Still, he can write a wickedly good book review. He wrote one recently that I admired, despite ultimately disagreeing with (sorry for that sentence-ending preposition). Now he's written one deflating the Studs Terkel balloon, which should make him about as popular as the Grinch this time of year.

Here's the beginning. If this doesn't attract you, don't read the rest.

Studs Terkel, oral historian extraordinaire, takes the title of his new book from Jessie de la Cruz, a retired farm worker. "If you lose hope," she told him, "you lose everything." By allowing political activists, especially those near the ends of their lives, to recount their past struggles for social justice, Terkel hopes to inspire contemporary Americans to take up causes of their own.

Chances are that they will not, at least not if they read what these exhausted, depressed and out-of-touch individuals actually have to say....