[Congressional Record Volume 140, Number 102 (Friday, July 29, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 29, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                 THE WELFARE STATE'S THREAT TO RELIGION

                                 ______


                           HON. NEWT GINGRICH

                               of georgia

                    in the house of representatives

                         Friday, July 29, 1994

  Mr. GINGRICH. Mr. Speaker, I would like to share a copy of a recent 
article by Richard A. Epstein with my colleagues. I hope they find it 
as informative as I did.

        [From the Wall Street Journal Wednesday, July 27, 1994]

                 The Welfare State's Threat to Religion

                        (By Richard A. Epstein)

       The ever-expanding reach of government has threatened the 
     twin constitutional guarantees of the Religion Clause to the 
     First Amendment: free exercise of religion for all and 
     establishment of religion for none.
       When government's functions are limited to preserving 
     order, protecting property rights and enforcing contracts, as 
     was the Founding Fathers' intention, these two clauses work 
     together well. But the advent of the welfare state upset this 
     easy relationship.
       The now notorious Kiryas Joel litigation, decided by the 
     Supreme Court last month, is a perfect example of the 
     corrosive effect of state subsidies on the original 
     constitutional balance on religion. The court declared 
     unconstitutional a school district in the tiny New York town 
     of Kiryas Joel in which only members of the Satmar Hasidic 
     sect live. This special school district was created out of 
     the larger Monroe-Woodbury District to provide a secular 
     public school for disabled Hasidic children in order for them 
     to take advantage of the considerable federal funds available 
     for disabled students. There are no public schools in Kiryas 
     Joel for able-bodied children.
       Clearly something can be said for the Supreme Court's 
     decision that the fusion of public and private functions in 
     the Kiryas Joel school district runs afoul of the First 
     Amendment. But step back from the immediate controversy and 
     consider the larger picture. First, conceive of a minimal 
     state with no federal support for disabled students. In such 
     a world, all Hasidim would have been in private schools and 
     Hasidic dollars would educate disabled Hasidic children. 
     State taxation, however, funnels these dollars through state 
     hands; if the Hasidim want their dollars back, they have to 
     send their disabled children to state schools.
       This was not the case until 1985, when the Supreme Court's 
     insanely aggressive reading of the Establishment Clause in 
     Aguilar v. Felton kicked in. Aguilar prohibits remedial 
     education in annexes to religious schools (as was the case in 
     Kiryas Joel), even when no federal funds are used for 
     religious ends.
       After Aguilar, the situation in Kiryas Joel quickly 
     unraveled. The first accommodation was to bundle the disabled 
     children off to secular public schools outside their own 
     community. But water and oil did not mix. Members of the 
     isolated religious minority were subject to abuse and 
     harassment for their dress and behavior. All parents save one 
     withdrew their children from these programs. Yet the magnet 
     of public money, and the evident unfairness of excluding 
     Hasidim from programs for which they had to pay, led 
     inexorably to the weird school district, staffed by non-
     Hasidic professionals and attended only by disabled Hasidic 
     students in a consciously maintained secular setting.
       One refreshing feature of this unhappy tale is that Justice 
     Anthony Kennedy's concurring opinion openly acknowledged that 
     Aguilar might be ``erroneous,'' and should be reconsidered. 
     But even if Aguilar were overturned tomorrow, much would 
     still be lost: The federal subsidy would still be restricted 
     (as charitable deductions are not, by the way) for secular 
     ends in secular settings. The price for accepting federal 
     funds is to lose the religious integrity of the curriculum. 
     The government's expanding power to tax and spend thus chokes 
     off religious independence.
       If we want to keep such federal subsidies, the better 
     solution would be to tie them to students, not to 
     institutions. This way they could be spent at whatever 
     schools students choose, no strings attached. The same mix of 
     religious and non-religious schools in a subsidy-free world 
     should, to the extent possible, carry over into our brave new 
     world of tax subsidies.
       An even broader look at the place of religion in the 
     welfare state shows that many of the greatest threats to 
     religious liberty stem from the insufficient protection of 
     individual liberty in economic affairs. For example, the 
     Supreme Court held in Presiding Bishop of the Church of 
     Latter-Day Saints v. Amos (1987) that the state could exempt, 
     in whole or part, religious institutions from the employment 
     discrimination laws. In a minimal state, such a question 
     would never arise because there would be no 
     antidiscrimination laws to begin with.
       Note also that nothing in Amos requires the state to honor 
     that religious exemption. Let the political winds change, and 
     the state could require that everyone from janitors to 
     teachers to high priests be hired regardless of their 
     religious beliefs. Freedom of association once offered an 
     impregnable barrier to government action; that is not 
     necessarily so under today's squishy balancing tests. So it 
     is no surprise that United States v. Lee (1987) meekly 
     deferred to Congress when it imposed Social Security taxes on 
     the Amish, who for religious reasons would not accept 
     benefits.
       Likewise when in 1978 the Supreme Court allowed New York to 
     impose landmark designation on individual property owners 
     without paying just compensation. This meant that St. 
     Bartholomew's Church in New York City could not develop or 
     sell its own air rights to secure its financial survival 
     without seeking to show (unsuccessfully) that religious 
     institutions should be exempt from the sweep of a general and 
     neutral law.
       More generally, with extensive government funding of 
     education and health care in the wings, the lurking danger is 
     that religious persons will be required to pay taxes to 
     support programs, such as abortion, in which as a matter of 
     conscience they cannot participate. Countering that danger 
     should be a major constitutional mission of the Supreme 
     Court.
       It is a goal that cannot be achieved in a world in which 
     property rights occupy a second-tier status. Chief Justice 
     William Rehnquist penned perhaps the single most important 
     sentence of this year's term in Dolan v. City of Tigard, a 
     land-use case decided in favor of the landowner: ``We see no 
     reason why the Takings Clause of the Fifth Amendment, as much 
     a part of the Bill of Rights as the First Amendment or Fourth 
     Amendment, should be relegated to the status of a poor 
     relation in these comparable circumstances.''
       The sentence has even greater urgency when set against the 
     background of the religion cases. The protection of private 
     property does more than promote market efficiency; it 
     enhances the level of human freedom in the most intimate and 
     personal parts of our lives.