Under Bill Clinton's enthusiastic touch, similar acts of ecclesiastic establishment reached a breakneck pace in the federal branch. Marci A. Hamilton, author of the recently published God vs. the Gavel and a professor at Cardozo Law School, writes that Clinton, more than any other president before him, "fostered an accumulation of religious power, and a union of church and state power, that threaten[ed] to undermine the Madisonian separation-of-power principle at the heart of the Constitution." Bankruptcy laws were skewed to churches, the Church Arson Prevention Act skewed arson laws, the Parsonage Tax Exemption widened tax exemptions, and the International Religious Freedom Act made federal establishment a global affair. Against the Clinton crush of religiosity, his successor's "faith-based initiatives" only appear as a furtherance of Democratic policy.
Perhaps most disturbing to proponents of disestablishment like Professor Hamilton -- who, it should be noted, prays "every day," being a devout Presbyterian -- was the passage in 1993 of the Religious Freedom Restoration Act, drafted as the organized response of the religion lobby to the Supreme Court's "peyote case" of 1990. The peyote case determined, rather reasonably, that religious motivation is no defense to illegal conduct, such as the consumption of hallucinogens (in this case by American Indian peyote cults). The interpretation pushed by the religion lobby was that the peyote case spelled the beginning of the end of religious liberty -- because believers would now have to obey the same law as non-believers.
The Religious Freedom Restoration Act restored the allegedly lost religious freedom by expanding the license of religion to in fact break the law. Under the RFRA, believers could challenge the jurisdiction and application of any and all neutrally applicable laws (meaning the statutes that apply to everyone, such as the injunctions against homicide, rape, embezzlement, car theft, etc.). Prosecutors would not be free to apply those neutral laws to believers unless it showed the law was passed for a "compelling interest" with regard to the believer -- that it was the most narrowly tailored law possible for the believer. The loopholes under RFRA were such that religious prisoners demanded the right to engage in sex acts before female prison guards; a father on a New England commune demanded exemption from child support because his money went to the benefit of religion on the commune. "Totally nuts," says Hamilton, who on behalf of the tiny city of Boerne, Texas, challenged the RFRA to the Supreme Court, and got portions of the law thrown out in 1997 as unconstitutional. The religion lobby in answer birthed an ugly cousin of RFRA, the Religious Land Use and Institutionalized Persons Act of 2000, which preserves an important feature of the RFRA. Under the RLUIPA, land use and zoning laws in the nation can be challenged literally because God may be directing the challenge, i.e., God wants that parking lot re-zoned for a 40-foot residential tower etc. The legislation pivotally places the burden of attorneys' fees in RLUIPA cases on local governments trying to enforce an otherwise equitable law.
There is in all of this a kind of perverse self-satisfaction and narcissism that appears to have jettisoned some pretty basic Judeo-Christian values. "In effect," writes Marci Hamilton in God vs. the Gavel, "religious entities have lobbied for the right to hurt others without consequences. That is a severe attack on the rule of law, which is supposed to guarantee that no one becomes a rule unto himself." Havens for economic and social and political outlawry, whether they are hurting township tax rolls or colluding in child rape and murder or illegally abetting the election of a criminal president (who makes war and spies on citizens as a rule unto himself), the ecclesiastical corporations, whose existence Madison so lamented, today are helping to fashion a social order that fetishizes religiosity but also has with no regrets unmoored religion from that strange old notion of loving thy neighbor. Prof. Hamilton calls this achievement a triumph of "possessive individualism" -- the secret sidecar to "ownership society" -- and a "triumph of the urge to power, in Nietzche's sense."
Moreover, that the ecclesiastical corporations have secured and expanded power by the cynical application of law and a creative sympathy in the judiciary indicates their effectiveness indeed as corporate players. It should be remembered that modern American corporations, conceived by lawyers in the Gilded Age as the grotesque offspring of the 14th Amendment, transformed themselves into "legal persons" by similar courtroom machinations. So the corporation gained the rights of a person -- among them, due process and equal treatment, the right to sue, hold property, borrow money -- but none of the obligations. "Did you ever expect a corporation to have a conscience," Edward Thurlow, the 18th century lord chancellor of England, remarked, "when it has no soul to be damned, and no body to be kicked?" The history of the business corporation has in fact been the systematic lobbying for the removal of all regulatory constraints to its operations -- in effect, as Professor Hamilton writes, "lobbying for the right to hurt others without consequences."
The greatest corporate successes in this effort, the founding moments in corporate wealth and power, rest in the 50 years of U.S. Supreme Court decisions that enshrined the deranged definition of "legal person" and gave to capital and property the rights of men while relieving the men behind the money of their liabilities. Similarly, the church looks for the fundaments of its own kind of legal exceptionalism in the three pivotal decades of the Burger Court. If corporations are mere business machines that the courts have mistaken for a person, then churches are mere corporations that the courts have mistaken for godliness. Still, corporations must pay their taxes, however they try not to, and, in the end, they must answer to the marketplace. The corporate church answers apparently only to God. Sic itur ad astra.
Christopher Ketcham writes for Harper's, Men's Journal, Salon.com and many other publications. He can be contacted at cketcham99@mindspring.com.
Perhaps most disturbing to proponents of disestablishment like Professor Hamilton -- who, it should be noted, prays "every day," being a devout Presbyterian -- was the passage in 1993 of the Religious Freedom Restoration Act, drafted as the organized response of the religion lobby to the Supreme Court's "peyote case" of 1990. The peyote case determined, rather reasonably, that religious motivation is no defense to illegal conduct, such as the consumption of hallucinogens (in this case by American Indian peyote cults). The interpretation pushed by the religion lobby was that the peyote case spelled the beginning of the end of religious liberty -- because believers would now have to obey the same law as non-believers.
The Religious Freedom Restoration Act restored the allegedly lost religious freedom by expanding the license of religion to in fact break the law. Under the RFRA, believers could challenge the jurisdiction and application of any and all neutrally applicable laws (meaning the statutes that apply to everyone, such as the injunctions against homicide, rape, embezzlement, car theft, etc.). Prosecutors would not be free to apply those neutral laws to believers unless it showed the law was passed for a "compelling interest" with regard to the believer -- that it was the most narrowly tailored law possible for the believer. The loopholes under RFRA were such that religious prisoners demanded the right to engage in sex acts before female prison guards; a father on a New England commune demanded exemption from child support because his money went to the benefit of religion on the commune. "Totally nuts," says Hamilton, who on behalf of the tiny city of Boerne, Texas, challenged the RFRA to the Supreme Court, and got portions of the law thrown out in 1997 as unconstitutional. The religion lobby in answer birthed an ugly cousin of RFRA, the Religious Land Use and Institutionalized Persons Act of 2000, which preserves an important feature of the RFRA. Under the RLUIPA, land use and zoning laws in the nation can be challenged literally because God may be directing the challenge, i.e., God wants that parking lot re-zoned for a 40-foot residential tower etc. The legislation pivotally places the burden of attorneys' fees in RLUIPA cases on local governments trying to enforce an otherwise equitable law.
There is in all of this a kind of perverse self-satisfaction and narcissism that appears to have jettisoned some pretty basic Judeo-Christian values. "In effect," writes Marci Hamilton in God vs. the Gavel, "religious entities have lobbied for the right to hurt others without consequences. That is a severe attack on the rule of law, which is supposed to guarantee that no one becomes a rule unto himself." Havens for economic and social and political outlawry, whether they are hurting township tax rolls or colluding in child rape and murder or illegally abetting the election of a criminal president (who makes war and spies on citizens as a rule unto himself), the ecclesiastical corporations, whose existence Madison so lamented, today are helping to fashion a social order that fetishizes religiosity but also has with no regrets unmoored religion from that strange old notion of loving thy neighbor. Prof. Hamilton calls this achievement a triumph of "possessive individualism" -- the secret sidecar to "ownership society" -- and a "triumph of the urge to power, in Nietzche's sense."
The greatest corporate successes in this effort, the founding moments in corporate wealth and power, rest in the 50 years of U.S. Supreme Court decisions that enshrined the deranged definition of "legal person" and gave to capital and property the rights of men while relieving the men behind the money of their liabilities. Similarly, the church looks for the fundaments of its own kind of legal exceptionalism in the three pivotal decades of the Burger Court. If corporations are mere business machines that the courts have mistaken for a person, then churches are mere corporations that the courts have mistaken for godliness. Still, corporations must pay their taxes, however they try not to, and, in the end, they must answer to the marketplace. The corporate church answers apparently only to God. Sic itur ad astra.
Christopher Ketcham writes for Harper's, Men's Journal, Salon.com and many other publications. He can be contacted at cketcham99@mindspring.com.
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