April 29, 2012
Sex, Lies, and School Bus RidesBy Edward H. Stewart, Jr.
The furor over the ObamaCare abortion pill mandate may be obscuring a very important point: nothing about the mandate itself, Obama's "compromise" with church-affiliated employers, the Sandra Fluke dustup, or the crass political calculation driving them is new. Not even the shameless bigotry of Democratic officeholders' assaults on the bishops for daring to stand their ground.
Given the left's war against religion over the last 60 years there was absolutely no reason for anyone to be surprised by Obama's political opportunism. The unvarnished, ugly truth is that the judiciary's assault on religion has often had little to do with the principled protection of First Amendment rights. It's just identity politics in robes. For progressive Supreme Court justices, principle is little more than an excuse to subvert the Constitution's negative rights in the name of social justice and centralized political power.
So, why did conservatives seem shocked that a progressive administration would perpetrate an outrage against Catholics?
Catholics have always offered a fatter target than, say, Methodists. So no one should be surprised that when Obama took a stab at religion he chose anti-Catholicism as the fire-hardened tip of his spear. He's simply following the lead of progressive ideologues, among them Supreme Court justices, who have channeled anti-Catholic bigotry to advance a big-government, secularist agenda. And for the same reason: a flank attack on Catholics is a lot less likely to stir up massive resistance than a frontal assault on Christianity. Or so Obama thought.
As well he might. There's been a disproportional amount of harassment along the Catholics' flanks. In 1985 Chief Justice Rehnquist listed pairs of conflicting decisions from cutting-edge Supreme Court cases involving sectarian schools. "Parochial" appears with 7 pairs and is implied by an eighth; the more generic "sectarian" and "religious" are mentioned with only one pair each.
The Court's anti-Catholic hit parade goes back to at least 1947 when Robert Jackson used his Everson dissent to rail against a law reimbursing parents of parochial school students for their children's fares on city buses. His argument included this gem: public schools were to be preferred because although they are "not a product of Protestantism" they are "more consistent with it than with the Catholic culture and scheme of values."
Jackson was the last justice who didn't graduate college or attend law school, a New Deal bureaucrat dumped on the Court to push the party line during FDR's court-packing days. His dissent is especially enlightening because he directly engages the issue of competing spheres of influence and loyalties, much as the resistance to Kennedy's candidacy for president would 13 years later, and in much the same way the abortion pill mandate does now.
Jackson's problem with reimbursing bus fares wasn't about "a Baptist or a Jew or an Episcopalian . . . complaining of discrimination." For Jackson, any benefit to parochial schools, no matter how sensible or incidental, was taxpayer support for the Church.
The Catholic Church's growth and cohesion, discipline and loyalty, spring from its schools. Catholic education is the rock on which the whole structure rests, and to render tax aid to its Church school is indistinguishable to me from rendering the same aid to the Church itself.
Even more revealing is the cocoon of falsehoods Jackson spins around this conclusion, because the parallel between his dishonesty and Obama's doubletalk about who will pay for ObamaCare's free contraceptives is striking. The township "is not furnishing transportation to the children in any form" because it does not operate school buses. Instead, it leaves children "to ride as ordinary paying passengers on the regular busses operated by the public transportation system." This does not improve public safety because "[a]s passengers on the public busses they travel as fast and no faster, and are as safe and no safer, since their parents are reimbursed as before." And so, Jackson assures us, Ewing Township "is not performing any public service of any kind with this taxpayer's money."
Like Obama's fib about women being denied access to health care, this is a deliberate lie; but unlike Obama's, it happens to be true. How can that be? The public service being provided is patently obvious, and the conclusion Jackson draws is just as obviously false. The city is providing free rides to and from school on city buses. And the purpose is not to make the children, who already ride the buses safer or to make the buses faster, but to make it possible for children whose financially strapped parents can't afford bus fares to ride the city buses. Stripped of its spin, Jackson's argument makes about as much sense as saying food stamps don't prevent hunger because families still have to eat the meals they buy with them.
The reason Jackson's lie turns out to be true is that "at stated intervals" the city will "reimburse parents for the fares paid." "Reimburse" means to repay, so let's follow the money. School children are given money by their parents; the kids hand it over to pay their fares. Their parents' money is now public transportation revenue. The city enjoys the use of this revenue for a few weeks; then the city returns the money to the parents. So Jackson's lie is true: since the parents are getting their own money back, no public service is being done with his taxpayer's money.
At least, not directly, at which point Jackson's dissent morphs from a study in simple dishonesty into an object lesson on the wisdom of the Article III ban against taxpayer standing. How Jackson would quantify the injury to his taxpayer is a mystery, since the city buses would run whether the children rode them or not. The city would lose the revenue from children who rode the buses before reimbursement, but that is hardly a tax expenditure. There must be an administrative expense, but that would likely be trivial compared to the actual payment of bus fares. And Jackson's already told us the taxpayer who brought the complaint had no religious skin in the game.
When you take away the religious motive and the financial motive for condemning children from poor families to walk to school through rush hour traffic, sleet and snow the most likely remaining candidates are the twin cornerstones of progressive narcissism: self-righteousness and spite. No matter. To Jackson, making the trip to school more comfortable and less dangerous for parochial school children was not improving public safety; it was financing the boot camps where priests indoctrinate soldiers for the culture wars, soldiers whose first loyalty is to Rome.
Although Everson upheld the reimbursements, it extended the reach of the establishment clause to the states, by way of the Fourteenth Amendment, and put it on steroids by linking it with Jefferson's Wall of Separation. It's therefore regarded as a turning point. What's not so widely understood is that, even though Jackson's dissent was joined only by Felix Frankfurter, it became the template for progressive establishment clause opinions. And, by extension, for Obama's abortion pill assault on Catholicism. Here are its salient features:
The complaint is brought by a taxpayer of questionable standing.
No traditional form of establishment is proved or even alleged.
No evidence can be presented that proves harm to the plaintiff's religion, finances or social status.
The secular purpose of the law is arbitrarily dismissed as a sham.
The law's real-world effect is misrepresented or denied with flagrant dishonesty.
The right invoked is not freedom of religion, but freedom from religion.
The power of religion, not the power of government, is declared a threat to religious freedom.
Benefits to individuals are conflated with government support for religious institutions.
Protected religious speech is indicted as the instrument of coercion.
Religious beliefs and values are trivialized to justify suppressing religious expression.
Yes, trivialized. Perhaps by making excuses for forcing Catholics to pay twice for their children's education, supporting public schools that are too Protestant with their tax dollars while paying tuition to parochial schools that are too Catholic to warrant public funding. Or perhaps by coercing Catholics to violate their moral conscience by providing free abortion pills to their employees through their health plans. Then insulting their intelligence by telling them their insurers will provide them "for free."
Anything to resist the hegemony of Rome.
 Wallace v. Jaffrey, Rehnquist, J, dissenting, 472 U.S. 38 (1985), 111-112.
 Everson v. Board of Education of Ewing Township, Jackson, J, dissenting, 330 U.S. 1 (1947), 25.
 Id., at 25.
 Id., at 20-21, emphasis added.
 Id., emphasis added.
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