FALLACIES DO NOT CEASE TO BE FALLACIES BECAUSE THEY BECOME FASHIONS

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JUSTICE RUTH BADER GINSBURG

Fallacies, Fashions, and Religious Liberty Cases

 THE CATHOLIC THING

One way to be confident that you have won a political or legal debate is to exclude from your mind contrary views that rely on ways of reasoning that have become unfamiliar because they have become unfashionable.

This occurs more often than you may realize. Take, for example, two sets of issues involving religious liberty. The first concerns the question of whether state and local government should provide vouchers to parents who send their children to private religious schools. Those who oppose such a policy often repeat talking points similar to those recently offered by the Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State (AU): “Parents are free to send their children to private religious schools if they wish, but . . . .taxpayers should not be forced to pay for it.”

I suppose that’s one way to think about it. But consider another. Recall that in Early America there were several states that had established churches, for there was no 14th Amendment (which passed in 1868) through which 20th century courts would eventually incorporate the Federal Constitution’s disestablishment clause and apply it to the states.

Although states with established churches also had strong provisions for religious liberty, all citizens were forced to support the official faith financially, through tax assessments. So you were free to believe and practice any faith you wished (as long as it did not violate peace and safety), though you still had to pay taxes to support the state’s established church.

When I explain this political arrangement to students in my class, Law and Religion in the United States, they express amazement combined with relief that we moderns seem so much more enlightened than our mildly theocratic ancestors. I follow up by asking, “Are you sure there is nothing like this going on today?” After some discussion, they remain confident that the Early American experience has no contemporary parallel.

But then I raise this question, “How many of you attended a private Christian high school before coming to Baylor?” Anywhere from 25 to 35 percent of the students raise their hands. I then ask, “Do your parents pay property taxes?” While they are nodding yes, I ask them what those taxes are used to support. They answer, “the public schools.” So, I say, “Let me get this straight. Under our Constitution, your parents are free to exercise their religious liberty by sending you to a private Christian school, though they still have to pay their taxes to support the state’s established school system. Are you still sure there is nothing today that is like the Early American experience?”

The Old Brick Church (St. Luke’s) in Smithfield, VA

Just as the advocates of America’s established churches argued that dissenters were free to believe and practice as they wished, even though they were forced to pay the government a church-tax from which the dissenters would receive no financial benefit, AU’s Lynn offers today’s dissenters the same cold comfort: “Parents are free to send their children to private religious schools if they wish, but. . . .taxpayers should not be forced to pay for it.”

The second example concerns Burwell v. Hobby Lobby (2014). It is the Supreme Court case that involved two closely held family-run companies, Hobby Lobby and Conestoga Wood Specialties, that objected to a regulation (the HHS mandate), issued by the Secretary of Health Human Services (HHS) under powers given to her by the 2010 Affordable Care Act (ACA). The mandate required for-profit companies to include in their employee health insurance plans birth control methods that the owners believe may at times function as abortifacients, that is, they kill human embryos soon after conception.

The Hobby Lobby owners, members of the Green Family, are Evangelical Protestants, while the Hahns, owners of Conestoga, are Mennonite Christians. For this reason, the companies argued that because the HHS regulation requires that they directly pay for, and thus cooperate with, the use of a product that violates what their respective moral theologies teach them about the sanctity of human life, the regulation is in violation of the 1993 Religious Freedom Restoration Act (RFRA).

In her dissenting opinion, Justice Ruth Bader Ginsburg, responds: “Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to be substantial . . . .[D]ecisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers.” In essence, she is arguing that merely paying for and providing a menu of birth control options to their employees as part of their benefit packages does not make Hobby Lobby or Conestoga accomplices in activities they believe are immoral.

On the other hand, Justice Ginsburg attributes the HHS mandate to the law-making authority of Congress, even though the mandate was not in the text of the ACA passed by Congress and signed by the president. The mandate, as I have already noted, was a regulation that the HHS issued under powers given it under the ACA. But in that case the mandate was the result of a decision of a non-Congressional body that need not have been made.

So, if one cannot legitimately attribute culpability to the Greens or the Hahns, simply because the final decision to use the birth control is made by the employee and not the Greens or the Hahns, then one cannot legitimately attribute the law-making authority of Congress to the HHS which issued the mandate, for the final decision as to the mandate’s content and scope was made by the HHS and not Congress.

The lesson here, in the words of G.K. Chesterton, is this: “Fallacies do not cease to be fallacies because they become fashions.

About Francis J. Beckwith

Francis J. Beckwith is Professor of Philosophy & Church-State Studies, Baylor University, where he also serves as Associate Director of the Graduate Program in Philosophy. Among his many books is Politics for Christians: Statecraft as Soulcraft (InterVarsity Press, 2010)

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  • Thank you Prof. Beckwith for an insightful piece.

    One wonders whether the everywhere-present Common Core curriculum might not constitute a “dogma” within the system you describe. Most text books today are geared toward Common Core and standardized tests are designed to test based on its teaching points.

    Homeschoolers who may be taught a traditional liberal arts education are at a disadvantage taking standardized tests if they have not also mastered the Common Core teaching points.

  • My state is one of 37 states that have a (anti-Catholic) Blaine amendment in its constitution that prohibits public funds from going to parochial schools, so even if we had vouchers they could not be used by parents to send their children to a faith-based school. As a Catholic whose three sons attended parochial schools it still irks me to no end that I had to pay taxes to support public schools that my sons did not attend. Until such amendments are dropped from state constitutions this is not going to change. It’s too bad TCT does not allow links because there was a very thought-provoking essay in January on how Blaine Amendments came about: “Old Religious Hatred Die Hard.” I imagine anyone interested in reading it could do a search for it.

  • To address the AU’s point about separation, do they advocate that every person of religion establish themselves as a religion so as to not be discriminated against in this scheme of paying double (school tax AND private school tuition) to educate their children?
    What the AU is proposing is discrimination by penalizing those who go to the free market of education because the AU hopes to eliminate that free market. Same goes for state universities. We pay for so-called public universities (and they charge tuition – which they should not – on top of all the taxpayer largesse they receive) and then for tuition if we send a child to a private university.

    This system is a mess, and I hope someone takes it on.

  • Doug Indeep:

    I agree that Dr. Beckwith’s analogy isn’t as strong as he portrays it to be. Still, I don’t think it is as baseless as you see it, either. It just requires a slightly fuller articulation than Dr. Beckwith provides.

    The more that I see of the deliberate programs in public schools designed to inculcate in schoolchildren a hostility to traditional religion and morality — even to the point of distorting the historical record in order to advance ideological agendas — the more I start to wonder whether it is really possible to maintain religious neutrality in public schools. When does a secularist ideology verge into a state-established theological system?

    Why should I have to pay for the state’s program to denigrate my religion and raise up a generation that will be profoundly hostile to my beliefs? Not precisely the same as paying for, say, an Episcopalian school system in my state, but really not so different in the end.

  • Dr. Beckwith presents some interesting and solid arguments to fight yet another government overreach.

    It pains me that, as the greatest country on God’s earth we have become reliant on the courts to decide these moral and ethical arguments that should have never been the subject of debate in the first place.

    Am I the only one that feels we are at war with ourselves?

  • Avatar

    After 26 years of tuition for our four children in Catholic schools and colleges, I don’t ask for taxpayers to pay for my children. I only ask that MY taxes pay for MY children’s education in Catholic schools. My taxes instead go to subsidize bankers and lawyers and doctors and engineers and dentists and stockbrokers and entrepreneurs who make much more money than I do, but recieve my taxes as a subsidy. So let them keep their taxes, but let me and my famliy spend my taxes. Nothing could be more fair.

  • Avatar

    The concept here is the same: I pay to send my children to a private (not necessarily a religious one) school but I must still pay taxes to support the public schools which I consider indoctrination centers for a secular religion that I reject.

  • God has a tremendous sense of humor. He juxtaposes before our very eyes aspects of our own idiocies as His way of saying, “LOOKIE!! LOOKIE!!”, and He hopes we’ll look, and the saints are all praying that we’ll look, but we have our eyes shut tight. A month ago, it was the juxtaposing of the praise for Bruce Jenner being a woman (he’s not, BTW) with the silence/condemnation of Racel Dolezal being black (she’s not, BTW). More recently, it is the silence over the Planned Parenthood videos juxtaposed with the outrage and grief over the killing of a pet lion. Dr. Beckwith, thank you for pointing out another farcical contradiction that we refuse to see — and thank you for the Chesterton quote. Perfect!

    Okay, I’ve got a joke for y’all:

    Question: How many Old Testament prophets does it take to change an oil lamp?

    Answer: Just one — but the oil lamp has got to want to change….

    (That was the joke God told the people of Sodom and Gomorrah right before He smote them. I wish I could tell you that “They died laughing” — but, in fact, they just didn’t get it….)

    • My friend Bill was a stand-up comic in the Boston clubs starting back in the 1940’s He had been around so long he claimed he was the original cruise comedian on Noah’s Ark. When asked if it was a friendly audience, he’d shake his head and say: “They were all animals.”

  • Government education as well as, increasingly , government medicine has become a moral hazard as well as a behemoth because it relies on third party payment. There is no such thing as a free lunch. Principled Catholics who can, ought to withdraw from both by homeschooling and health sharing ministry.

    • But you would want “principled Catholics” to continue to support your children’s education through taxation and pay for your contraception devices, even though they violate personal conscience and religious belief? How just is that?

  • It seems of late that “the state” is exercising an animus against “the free exercise” of religion by its citizens, and the state ensures that its “state schools” promote that animus. Paying taxes to support the state’s schools now seems to cease to be a public good, and appears to be a “veiled” form of tyranny.

  • Here in Scotland, although most of them had long ago been redeemed, some payments for teind and stipend continued to be payable until 2004.

    Personally, I could never see that this was an injustice to those proprietors, like me, that were not members of the established church. Whatever the origin of the thing (and it is very complicated), anyone buying land subject to teind or stipend adjusted his price accordingly; anyone who inherited it acquired the same rights as his ancestor enjoyed but subject to the same burdens. In this respect, such payments were no different to feu-duty or any other ground-annual with which land happened to be encumbered.

  • Schools are not churches. Paying taxes to support a state established church is one thing. Paying taxes to support public education is quite another. They should not be regarded as equivalents.

    • Avatar

      One of the primary functions of a church is to “teach”. Our public educational systems have agendas for teaching which are defined by the curriculum which they support. In the fifth grade public school I attended, the 10 commandments (which were bolted in) were taken off the walls of our classroom. The text books I learned from were largely mute to the Christian experience and if they did teach historically about it, it was in a shallow and even somewhat dishonest way because the information was gutted from elementary forms of spiritual insight. In my opinion, Christians should be very concerned about supporting state education – especially since the advent of common core standards. Two years ago, Kindergarten students in Urbana, Illinois public schools were required to read a book about two “male” penguins who have a “son”. This is an example of the school teaching morality. A morality that would have been unheard of 10 years ago. A morality contrary to the one I want to impart to my children. A morality the school shouldn’t be taking sides on at all and using public dollars to impart.

      If or if not children are being taught on Sunday with their parents or relatives in church, many are certainly being taught at their local public school five days a week and for about 180 days of the year.

    • They are only equivalent when it comes to paying for both if you send your child to a private school. This is not so much about religion as it is about the free market in education (or medicine or computers or whatever). The state wants to always dominate.

    • On the contrary: The state schools most certainly do function as churches, in that they aggressively promote a vision of the world, and of man’s place in it, and of the meaning of human existence, that is at best promoted without regard to the wishes of the parents, and at worst promoted against their wishes. It is a “religion” with its very dubious saints — Malcolm X, Margaret Sanger; its dubious celebrations; its moral directives, shallow and foolish though they are (recycle, use condoms). Moreover, the schools do not actually perform the tasks for which they were established in the first place. They have abandoned the systematic study of language — try asking a college Honors student what a participle is. They have abandoned the systematic study of history, preferring instead to have teachers bounce around from “unit” to “unit” devoted to preferred eddies of the historical current. They have abandoned geography altogether. They have abandoned the study of western literature, particularly of English literature; it is Shakespeare, detached from his time and culture, along with the usual political authors from the 20th century, with crude young-adult dystopias mixed in.

      We have, in effect, a vast and hugely expensive “established church,” unconstrained by local oversight, much less by the severe and sobering word of God.

      • Precisely. And now the public schools are going to cram down gender ideology.

        People have been taught (in their public schools, no less) the lie that the State is not its own Church, is not a religion, therefore the State’s laws do not impose a religion even while they do impose a vision of the public good.

        I return from time to time to the 2010 essay by Micah Watson at The Public Discourse, in which he argues that the State cannot help but legislate morality. Briefly, all laws are moral; the law teaches; therefore the law teaches morality.

    • Prof. Beckwith didn’t say schools were churches. He said that at one time some churches were supported by taxes confiscated from people who did not use those churches, and that today some schools are supported by taxes confiscated from people who do not use those schools. Focus on the actual comparison rather than your misrepresentation of it.

      • It should be added, too, that the taxes were quite modest, and that in Connecticut (for one), if you were an Episcopalian or a Methodist, you could re-direct your tax contribution to your own church instead of to the established Congregational church. The same offer was made to the Baptists too, though they fought instead for disestablishment. It seems that Connecticut’s example could be readily applied to parents who send their children to religious schools; it already is applied, via student loans, to people who attend religious colleges. The point is that, since education is a public good, it is unfair to ask parents to support that public good twice over, merely because they wish to send their children to a religious school. A people are justified in promoting the common good, even if it comes by way of men and women of God (horrors!), as they are justified in discouraging the corruption of public morals, even if (dear me, who’d have thought it?) the corruption comes by way of pornographers, fornicators, adulterers, and sodomites.

 

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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