Why Religion Gets Special Privileges In America

Please excuse some strange font formatting problems with this post

I noted a rather significant victory for First Amendment values this past weekend at Tufts University. See Religious Liberty And First Amendment Values Victory At Tufts !! Is Vanderbilt University Taking Note ?

I mentioned in that post I wanted was going to do a follow up as to the reaction and protest of some students at Tufts that this Christian group will now get to discriminate on the basis of belief as criteria for leadership positions. That post is still coming. Walker Bristol has informed me of a certain wrinkle in Tufts policy toward student groups as a whole  and I want to investigate further before proceeding.

That being said I wanted to hit on a point that Hemant Mehta AKA The Friendly Atheist is making at  Tufts University’s Nondiscrimination Policy No Longer Applies to Religious Student Groups .

He says in part :

...My friend Walker Bristol, a Tufts student, tells me that all the other religious groups on campus (as well as Tufts Freethought) will either not make use of this loophole or continue to actively oppose it. That’s fantastic. Get a coalition of students who refuse to abide by the Christian Exemption and show up the students who want rules carved out just for them....

He seems to agree with the Student's newspaper editorial board when they say "  the CSL’s policy, rather than promoting religious freedom, promotes religious exceptionalism" .

This sort of brings up a larger issue. As to First Amendment values and law is there indeed a "religious exceptionalism" . To be more specific is religion  "special" and "should be granted  some "deferential attention" in the public square and indeed more and more the private square.

Traditionally the answer to this question has been an a very uncontroversial yes. In the Supreme Court Oral arguments in the Martinez case Chief Justice Roberts said :

[G]ender or race is fundamentally different from religious [belief]. Gender

and race is a status. Religious belief, it has to be based on the fundamental

notion that we are not open to everybody. We have beliefs, you have to

subscribe to them. And we have always regarded that as a good thing.

That type of exclusion is supported in - in the Constitution. The other

types of exclusion are not.209 ( see Martinez Oral Argument Transcript, at 46–47.)  

This viewpoint has been under some stress as of late. 

 We see from the posts of the Friendly Atheist , and the reaction of some students at Tufts to the administration's ruling an example of that. 

 Now in our civil society the government and various other forms of authority have not only accomodated religion when they legally had to do it , but have also accomodated it when it was not under a strict obligations to do so. 

  This viewpoint I have think has served us well over the past 200 and something years in a nation that is remarkably religious diverse.

 Still we are called to give reasons why perhaps this should continue by more secular forces.   On that note Mirrors of Justice highlights a very good essay at Christianity Today that does this. See McClay, "Honoring Faith in the Public Square".  

In the article Honoring Faith in the Public Square -Let's be frank: Religion in America really does enjoy 'special privileges.' Here are five reasons—plus one—why it should , I think Mr McClay lays out a pretty good case to our fellow secular citizens. His reason of American pluralism is a case in point.   However I think the stronger case he makes to secular citizens is when he mentions  that without it there is " "No Place to Hide " or perhaps to put it another way there is a fewer avenues " To be left alone " . 

 Ross Douthat in a past column at the New York Times hit on this point in a big way  at Government and Its Rivals  that deals with the HHS Contraception mandate : 

 WHEN liberals are in a philosophical mood, they like to cast debates over the role of government not as a clash between the individual and the state, but as a conflict between the individual and the community. Liberals are for cooperation and joint effort; conservatives are for self-interest and selfishness. Liberals build the Hoover Dam and the interstate highways; conservatives sit home and dog-ear copies of “The Fountainhead.” Liberals know that it takes a village; conservatives pretend that all it takes is John Wayne.  

In this worldview, the government is just the natural expression of our national community, and the place where we all join hands to pursue the common good. Or to borrow a line attributed to Representative Barney Frank, “Government is simply the name we give to the things we choose to do together.”

Many conservatives would go this far with Frank: Government is one way we choose to work together, and there are certain things we need to do collectively that only government can do.

But there are trade-offs as well, which liberal communitarians don’t always like to acknowledge. When government expands, it’s often at the expense of alternative expressions of community, alternative groups that seek to serve the common good. Unlike most communal organizations, the government has coercive power — the power to regulate, to mandate and to tax. These advantages make it all too easy for the state to gradually crowd out its rivals. The more things we “do together” as a government, in many cases, the fewer things we’re allowed to do together in other spheres.

Sometimes this crowding out happens gradually, subtly, indirectly. Every tax dollar the government takes is a dollar that can’t go to charities and churches. Every program the government runs, from education to health care to the welfare office, can easily become a kind of taxpayer-backed monopoly. .....

After explaining the problems the HHS Contraception mandate brings he states :


......Critics of the administration’s policy are framing this as a religious liberty issue, and rightly so. But what’s at stake here is bigger even than religious freedom. The Obama White House’s decision is a threat to any kind of voluntary community that doesn’t share the moral sensibilities of whichever party controls the health care bureaucracy.


The Catholic Church’s position on contraception is not widely appreciated, to put it mildly, and many liberals are inclined to see the White House’s decision as a blow for the progressive cause. They should think again. Once claimed, such powers tend to be used in ways that nobody quite anticipated, and the logic behind these regulations could be applied in equally punitive ways by administrations with very different values from this one.

The more the federal government becomes an instrument of culture war, the greater the incentive for both conservatives and liberals to expand its powers and turn them to ideological ends. It is Catholics hospitals today; it will be someone else tomorrow.

The White House attack on conscience is a vindication of health care reform’s critics, who saw exactly this kind of overreach coming. But it’s also an intimation of a darker American future, in which our voluntary communities wither away and government becomes the only word we have for the things we do together.

I think Douthat is hitting something big here and it relates in my mind to the Christanity Today essay. It's is hard to imagine what could replace various form of Faith Ccommunities in this regard. Secular citizens worried perhaps about expansive government power should perhaps consider the benefit of this needed check. A check that is there  because we do view religion as something special.

These clashes I expect will increase and we are going to see it more and more in the "private square". See The Naked Private Square by Prof Ronald J. Colombo of Hostra  and excellent law review article that is getting some play this month .

I will try to examine the particular situation of Tufts later.