More Grist for my Mill

May 24, 2004 | 33 comments
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The Salvation Army vs. the lobby for gays and the sentiment for feckless cohabitation.

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33 Responses to More Grist for my Mill

  1. lyle on May 24, 2004 at 12:10 pm

    Soon Adam, the poor in NY will be able to understand Les Mis better as they too sing…

    “I stole a loaf of bread…”
    & the opposition chorus says
    “and by your jail time provide ‘equal’ opportunity’ for all…”

  2. Gary Cooper on May 24, 2004 at 2:08 pm

    Adam,

    I wonder if those in NYC government forcing the “gay rights” agenda on the Salvation Army have any plan at all on how to replace the Army’s programs for the poor once they have forced the Army out? Hmmm…This does sort of show where the New Morality’s priorities are, doesn’t it!

  3. cooper on May 24, 2004 at 2:13 pm

    “The needs of the many outwiegh the needs of a few.”

  4. Kaimi on May 24, 2004 at 2:17 pm

    Gary,

    So, the Salvation Army would choose to abandon the homeless and the needy that they have been helping, rather than give health benefits to a few gays?

    I think that that shows where the Salvation Army’s priorities are, as well.

  5. lyle on May 24, 2004 at 2:42 pm

    and, by logical extension, the values of the LDS Church as well. Oh well…

  6. obi-wan on May 24, 2004 at 2:54 pm

    “and, by logical extension, the values of the LDS Church as well. Oh well…”

    Perhaps you should review your logic. The Salvation Army is required to accept the City’s employment requirements because they are taking the City’s money. If you accept Caesar’s coin, you accept Caesar’s terms — one of the dangers of the current “faith-based initiatives” craze.

    Note well that one of the Church’s key “values” has been to avoid accepting either.

  7. lyle on May 24, 2004 at 2:59 pm

    don’t need to review Philo 205 Obi…thanks for the thought though.

    However, Kaimi’s question calls into question the committment of the SA to their doctrine…which doesn’t require any acceptance of caesar’s coin; and given a counter-factual where the LDS church was in the same position…

    would result in the same decision.

  8. Clark Goble on May 24, 2004 at 3:00 pm

    I’m not quite sure the details of the story. I read the news article but as with so many news stories the exact details of what was going on weren’t really explained. Are they forcing the Salvation Army to *hire* gays? Or is it just that the Salvation Army has to provide benefits to unmarried couples and gays? The bit the city put in “or for any in your family” might make the issue resolvable. But perhaps only if a single person could do it for roommates and the like.

    I can certainly understand the Salvation Army’s position. Although, to be honest, I didn’t realize that they still held to such conservative Christian ethical positions that much. Tells you how much I know. Personally I think the Salvation Army should just stop taking the city’s money. After that few billion dollars the McDonald’s family left them it isn’t as if they are hurting *that* badly for money. Further it might show cities how they feel about infringing on religious charities.

    All of this makes me even more skeptical about Bush’s “faith based” charities though. Should the government really be funding such organizations when there are always inherent conflicts of interest?

  9. Charles on May 24, 2004 at 3:05 pm

    The issue at hand here is the sovereignty of religious organizations. The government wants to force the Salvation Army to extend benefits to people who do not work for them but are related to individuals that do work for them. The problem is that the Salvation Army does not recognize that relationship. Its like asking for your employer to extend benefits to your best freind, regardless of whether your freind is the same sex as you or not. It is a rediculous demand.

    The homeless and needy are being cared for by an experienced non profit organization with religious foundations.

    The government can remain impartial and refrain from establishing the Salvation Army’s doctrine, and allow them to continue to work.

    If the government feels that they should not provide financial support then they can pull thier financial backing. Surely the Army would suffer but they could continue to work without government funding or interference.

    It would behove the government to continue funding as a government program to replace the Army’s efforts would not likely garner the same results.

  10. Kaimi on May 24, 2004 at 3:05 pm

    I believe that under Amos v. Presiding Bishop, a church is not required under Federal law to hire people who don’t meet its religious standards. I’m not sure how Amos applies to local law (if at all).

  11. lyle on May 24, 2004 at 3:09 pm

    the money the SA inherited via McDonalds was “earmarked” for the building/maintainance of community centers & only pays for 50% of the above. So…they don’t have excess cash & actually have to raise the other 50% to even use the money left them.

    regardless: sure, they can stop taking the money. they can then also serve less folks.

    in a conflict between a law & a religious belief…why is it always the religious belief that suffers? sounds like a secular sin to be religious…one punished by not allowing religiously-motivated organizations to participate on the same footing as secular ones.

    oh well…one good act of discrimination deserves another, no?

  12. obi-wan on May 24, 2004 at 3:11 pm

    “All of this makes me even more skeptical about Bush’s “faith based” charities though. Should the government really be funding such organizations when there are always inherent conflicts of interest?”

    In a word: no.

    The Establishment Clause wasn’t just placed there the keep religion(s) out of government. It was equally well intended to keep government out of religion(s).

  13. Frank McIntyre on May 24, 2004 at 3:13 pm

    New York taxes a bunch of citizens and then gives the money to the Salvation Army. Then tells the Salvation Army how to run its personnel policy. Perhaps New York should let the Salvation Army collect its own money instead of imposing a taxation scheme and then turning the money over to them? SA will end up with less money but it will be freely given. Of course, if NY government continues taxing, citizens must double give in order to give to SA. The tax scheme, coupled with the personnel policy, work together to push the SA out of the market, leaving one less non-government option.

    New York is providing an excellent example of why the Church has a policy of non-involvement. A government that presses for a lack of religious values almost by necessity forces those values out of the arenas into which it enters.

    The government’s pluralistic approach is very useful in some areas, but pluralism’s lack of credo can be corrosive in others. This seems to be an excellent reason for being careful about government involvement; because (in the U.S.) government does not coexist well with religion, and the end result of government entry into a domain seems to be to shoo religion out the door.

    So, for example, if the government runs the schools, the schools won’t be able to teach certain (religious) things. So there are benefits to public intervention, but there are costs. Those costs can be very high.

  14. lyle on May 24, 2004 at 3:17 pm

    It’s a good thing that Harvard, Yale, etc. have all lost their religious connections. Imagine if they were still the “big” institutions of higher learning & were run by religious organizations with doctrine anti-thetical to our PC society. No more government funding for them…

    Of course, this is just the Salvation Army, and it is okay to pick on the poor.

    obi: i’ll leave it to others, or refer you to other T&S posts re: establishment clause. while today it might be essentially meaningless, originally it was only meant to keep the _national_government from explicitly enforcing a _national_ religion…not to prevent religiously-motivated groups from being unable to serve the poor vis-a-vis secular groups.

  15. Nate Oman on May 24, 2004 at 3:38 pm

    Kaimi: Presiding Bishopric v. Amos upheld a statutory exemption from Title VII for religious employers from an Establishment Clause attack. It did not hold that such an exemption was required by the free exercise clause. (Cf. Employment Division v. Smith) In other words, Amos has no applicability to local laws, other than the fact that it would shield such laws from an Establishment Clause attack IF the local law makers CHOSE to exempt religious organizations. If the lawmakers don’t choose to exempt the religious organization, then there isn’t much of a claim.

    One qualification to the final sentence is the possibility of entanglement. Originally Title VII exempted only overtly religious employees of religious employers. The idea was that the Catholic Church was not subject to Title VII in hiring priests, but would be subject to Title VII in hiring janitors. The problem arose in drawing lines and figuring out how religious an employee was before the employee qualified for the exemption. The fear was that this involved a degree of entanglement between the state and the religious organization that could violate the Establishment Clause under Lemon v. Kurtzman. Before any real constitutional challenge to the original Title VII emerged, however, Congress intervened and provided a blanket exemption for religious employers to avoid the line drawing. The the extent that local laws provide the more limited kind of exemption present in the original Title VII scheme, they may be open to an Establishment Clause challenge under Lemon, but I am not aware of any cases directly on point. (Although I would be surprised if there weren’t such cases out there.)

  16. obi-wan on May 24, 2004 at 4:13 pm

    “obi: i’ll leave it to others, or refer you to other T&S posts re: establishment clause. while today it might be essentially meaningless, originally it was only meant to keep the _national_government from explicitly enforcing a _national_ religion…not to prevent religiously-motivated groups from being unable to serve the poor vis-a-vis secular groups.”

    Lyle — I gather from your posts here that you are a law student somewhere or other. I also gather from your posts that wherever that is, they haven’t done a very good job of communicating the concept of neutral principles. We don’t permit use of state mechanisms to impose LDS precepts on the Protestants or the atheists or the Buddhists or the Zorastrians because if we did, in the fulness of time, inevitably, the Protestants or the atheists or the Buddhists or the Zorastrians would use state mechanisms to impose their precepts on us. It is a simple matter of self-preservation, which the Framers wisely anticipated.

    Even under the Rehnquist court, the Establishment Clause still has plenty of meaning (unlike the poor Free Exercise Clause). Cf. the latter portion of Nate’s post on entanglement under Lemon. If religiously-motivated groups want to serve the poor with their own funding, they can do it in whatever way they choose. As I pointed out above, this also has the admirable benefit of keeping the state from from making religions dependent upon federal money the way the States are upon federal highway funding.

  17. obi-wan on May 24, 2004 at 4:17 pm

    Whoops, that should have read “making religions dependant upon *government* money the way the States are upon federal highway funding.”

    I really hate this interface.

  18. Kaimi on May 24, 2004 at 4:26 pm

    Lyle,

    I tend to disagree strongly with statements that “the original meaning of the establishment and/or free exercise clause was X.” In my experience, almost all such characterizations vastly oversimplify the reality.

    Original meaning, if it exists, is a tricky subject anyway, and particularly difficult in the case of the religion clauses. For every statement from a founder (however defined) that religion is good (of which there are many), we can also find a counter statement, such as walls between church and state (Madison) or the folly of organized Christian religion (Jefferson), just to start.

    My opinion is that the only correct statement, short of a doctoral-thesis-length, incredibly nuanced argument, would be something like “the original intent of the founders with respect to the religion clauses is complicated, contradictory, and very difficult either to establish definitively or to connect firmly to most modern normative positions.”

  19. Charles on May 24, 2004 at 4:31 pm

    Obi-wan,
    As a lay person on legal matters, my understanding is that the establisment clause is strictly that, establisment, ie the creation of or endorsement of a national religion.

    I see nothing wrong with faith based initiatives. Its pretty common to see how much waste is created by government when they try to impose certain social reforms. Why not rely on those institutions, religious or not, that have proven records for helping society. Why should the government try to reinvent what the SA already does? Isn’t it better to just donate to them.

    And to me, that is the key. Donate. Once money is donated it belongs to the recieving party. To require a certain adherence to the donator would be building a quid pro quo relationship. The government could easily recognze the good that a religious organization is doing, and choose to fund not the organization but the project in question without requiring the organization adhere to government’s rule.

  20. Charles on May 24, 2004 at 4:47 pm

    Kami,

    While I agree that making statments such as “the original meaning was X” I disagree that it is over simplifying the problem.

    What is wrong with simplifying the solution? If the establisment clause is taken at face value it is pretty clear to me what it means. Only when we start poking and proding it do we make it more complicated than it needs to be.

    Perhaps this is my own flawed view of constitutional law, but it makes sense to me that the law our country is founded on should be able to be comprehended by any citizen with common sense. By complicating matters with exclusions and debating the meaning of what the word “is” is, we do nothing but complicate the law and frustrate those who wish to participate in it.

  21. Nate Oman on May 24, 2004 at 4:51 pm

    Kaimi: I am as in favor of complexity about historical meaning and original intent as the next guy, but I think that you are being needlessly cagey here.

    Jettison the idea of what the Founder’s intended re the establishment clause, and simply look at the way it was understood as a matter of legal practice: There is no serious argument that can be made that it originally reached state establishments. Several states had established churches until the Jacksonian period and they were disestablished as a matter of politcal choice rather than constitutional interpretation.

    Whatever the normative attractiveness of a jurisdictional reading of the establishment clause, I don’t think that you can seriously argue that this was NOT its original meaning. Much better to save every-thing-is-ambigious-anti-originalism for genuinely ambigious issues like the scope of free speech protection or the meaning of the Ninth Amendment.

  22. Sam B. on May 24, 2004 at 4:59 pm

    Frank,
    How does the tax scheme, coupled with the personnel policy (okay, I get the personnel policy part) work to push SA out of the picture?

    Currently, in its homeless policy, the city of New York outsources to all sorts of public agencies, awarding contracts to winning bidders. It seems to make good economic sense that minimizing the impact of homelessness–and doing our darndest to fix the underlying problems–is a public good, and one for which the government can legitimately pay.

    What is a viable alternative to taxing state/city residents and paying some of that money to private organizations to do homeless outreach?

  23. lyle on May 24, 2004 at 5:20 pm

    as always, Nate is far more eloquent than I. :)

    obi: re: neutral principles, feel free to look up my honors thesis at BYU on the subject. It had something to do with the history of the first amendment since 1960s on. while legal scholars can try to isolate “establishment” from “free exercise,” they are both part of the same thing & weakening one affects the other…as the Locke case decided this term sadly points out.

  24. obi-wan on May 24, 2004 at 5:45 pm

    “Jettison the idea of what the Founder’s intended re the establishment clause, and simply look at the way it was understood as a matter of legal practice: There is no serious argument that can be made that it originally reached state establishments. Several states had established churches until the Jacksonian period and they were disestablished as a matter of politcal choice rather than constitutional interpretation.”

    Nate: I don’t want to put words in Kaimi’s mouth, but my understanding of his post was that he was arguing toward something like Lessigean (is that a word?) “translation.” If he was, then that is the answer to Charles’ comment on over-simplification — we attempt to achieve the outcome intended by the Framers in light of changed circumstances.

    If he wasn’t, then I’ll independently assert it as the answer to Charles.

    And the answer to Charles’ query to me: even allowing the state to “donate” funds to religious organizations 1) promotes the funded religion at the expense of others, 2) fosters dependence on governmental largesse, and consequently 3) allows the government to pick winners and losers in the religious arena. And we are, in the long run, unlikely to approve of such governmental picking and choosing.

    And Lyle: with apologies to Abinadi, if ye have written of neutral principles, ye have not understood them. Nearly everything I’ve seen you post on T&S comprises overt assertions for governmental adoption of a particular (LDS) viewpoint — a very dangerous proposition for a pluralistic society in which we remain a not only a minority, but not even a very well liked minority.

  25. Frank McIntyre on May 24, 2004 at 5:53 pm

    “How does taxation push out the SA?” Joe Taxpayer is willing to pay $X for homeless reduction. The government taxes Joe $T. SA knocks on Joe’s door asking for donations. Joe was willing to give $X, but he notes that he has already been forced to give $T. One can argue about exactly how much Joe gives, but it follows pretty generally that as $T goes up, Joe’s private donations to SA go down.

    For those unfamiliar with the term, a “public good” is a good that, when I pay for it, you can use it costlessly. This gives us both an incentive to wait for the other person to buy it, and then mooch. If I feed the homeless mother, you feel better but pay nothing. Public goods are in general underprovided by free markets (due to mooching), thus the case for government action.

    It is certainly the case that homelessness is a public good. Just because something is a public good does not mean that the world is better off having the government step in to try to provide the good. This depends on how “public” a good it is and how much of the benefit each person captures privately. It also depends on the costs of government action; one of which I think gets too little attention, namely that government action pressures religious approaches out of action. This was the point I made in a my last post. The value of government action also depends on the distortions associated with taxation— since all implemented tax schemes are distortionary. Presumably there are other inefficiencies that one should consider.

    So one faces a public good inefficiency because of free-riders, but government action trades that problem for other inefficiencies. Would New York be better off with only privately raised funds and no government taxation for homeless relief? Who knows? Can anyone think of an appropriate comparison city that has tried such an approach? I certainly can’t. Note that I said “better off”, not “spends more money on the homeless”, which it certainly wouldn’t, nor “provides better care for the homeless”, which may or may not happen. Each of these is a distinct issue.

    “What is a viable alternative to taxing …”
    Is there some presumption a public goods inefficiency is greater than a taxation inefficiency? Government activity and grants are also not models of efficiency. Is there some presumption that this inefficiency is less than the original public goods inefficiency?

    I have not studied homeless policy in New York. Maybe their current approach is a light on the hill of enlightened and efficient giving. But I doubt it. Regardless, I don’t think the mere existence of a public good is sufficient reason to start a government program. The bar should be quite a bit higher.

  26. lyle on May 24, 2004 at 6:01 pm

    obi: whatever. i’m an accomodationist. and i dont’ care about ‘translations’ regardless of the scholar’s name attached to them. if you aren’t an accomodationist, but like TJ’s “wall of separation,” fine…but that isn’t what was written in the CON & I’ll try not to tell you that you sound like a whiny law student who doesn’t understand constituional law. :)

    why don’t you try to address the historical fact of state-level sponsored religion? alt: you could just admit that the Constitution today has very little to do with what was originally approved by the People & has more to do with whatever current political rage that mobocracy and/or the legal intelligentsia wants to foist off on the supposedly stupid publik.

  27. obi-wan on May 24, 2004 at 7:40 pm

    “whatever. i’m an accomodationist”

    Yes, I imagine that you were at one time, although your comments here display the endpoint that accommodation always inevitably slides into: the assumption that the state will accommodate *your* particular religious viewpoint, either in addition to or in preference to all of the others.

    An impossibility, of course. And as I said, inevitably dangerous to the Church.

  28. Nate Oman on May 24, 2004 at 7:57 pm

    Obi-wan: I wasn’t arguing against Larry Lessig, who I understand to be making a claim about proper constitutional interpretation. Rather, I was arguing against Kaimi, who I took to be making a concrete historical claim, namely that the Establishment Clause cannot be understood uncontroversially as applying only to action by the federal goverment. As a matter of historical fact, as it happens, I don’t think that this is a controversial claim. There were state establishments for more than four decades after the adoption of the First Amendment and no one thought them constitutionally problematic. (Many people thought they were unwise and/or poltically immoral, etc.) States with established churches ratified the First Amendment, etc. etc. I just don’t think it is a particularlly problematic historical claim.

    The relevence of this historical fact for contemporary constitutional interpretation is another matter. (As I have written elsewhere, I don’t have much of a problem with incorporation of the bill of rights against the states, but I see no reason to resort to obscurantist historical claims in order to justify the position.)

    Finally, your dicotomy between neutral principles and accomodation is over drawn. The fact that you earlier endorsed my analysis of the Lemon problems faced by less accommodationist approaches than that currently enshrined in Title VII illustrates this fact. An absolute non-discrimination principle in employement would place huge burdens on the free exercise of religion. Drawing clear and coherent lines that cut to the joints of the free exercise concern is difficult (and perhaps impossible) without impermissable government entanglement. The Congressional solution is a broad accomodation. Many folks who purport to favor “strictly neutral principles” in the religion clause areana, e.g. Justice Steven, thought the accomodation provided in amended Title VII was illegitimate, but it is far from clear that the seperationism envisioned by Justice Stevens is practically possible in any but a minimal state.

  29. Sam B. on May 24, 2004 at 8:40 pm

    Frank,
    I’m not just talking public goods or governmental inefficiency–the problem exists: homelessness is not going away. Apparently, private giving is insufficient to fix the problem (last year, any given night, there were about 35,000 people in homeless shelters in NYC). The way the city government is dealing with the problem is not optimal, but its partnership with private contractors is the best it has come up with.

    Theoretically, there probably is a better way to confront homelessness than what we’re doing now, but theory is probably irrelevant to those 35,000. It’s a very real problem, and one that affects me, too, as a housed New Yorker–I interact more closely with the homeless than I ever did in other cities I’ve lived in. But, just like national defense, my voluntary contribution makes very little effect alone, and I can freeride on others’ generosity. So without government action, maybe the homeless are left out entirely. What’s the solution (be it tax or other)?

    And, before writing out the relevance of government spending, we need to recognize the implicit tax subsidy in charitable giving. Without the tax system, would people give? We’ll find out, presumably, in 2010 (with the repeal of the estate tax), but I’m not hopeful.

  30. Ivan Wolfe on May 24, 2004 at 10:10 pm

    This could affect the church. Here’s how:

    BYU, while a private college, does accept some federal and state money in the forms of grants, loans and funding for some projects.

    So, speculate that in Hawaii gay marriage gets full recognition and all employers are required to give full benefits to gay couples.

    Someone who happens to be gay gets work as a custodial supervisor at BYU-Hawaii and then later marries another gay person of the same gender. After trying to get full benefits for his spouse, BYU-Hawaii fires him or at least denies the benefits. He sues, and the Supreme Court of Hawaii rules BYU-Hawaii must give full benefits to gay spouses.

    What happens then?

  31. Frank McIntyre on May 25, 2004 at 12:34 am

    Sam,

    “but theory is probably irrelevant to those 35,000″
    — this is a bizarre claim. Since we don’t have any proven way to cure homelessness, all that exists are a set of theories. So why is the theory I put forward irrelevant to the homeless? It is directly relevant, as I am wondering if the homeless might get higher quality help were the government encroachment to be reversed. You see that the government is involved and apparently take that as a private sector failing. But what one observes now is decidedly not what one would observe were the city of New York to close its shelters. Other, private facilities would open up. The question is, how many would open up and would they do a better job, and would people feel better about them? We don’t know.

    Certainly homelessness is not going to go away. But no one thinks otherwise. The question is how many resources should we use to solve the problem and how should those resources be allocated. These are theoretical questions, and proposed answers must be empirically tested. Unfortunately it is very difficult to perform any sort of test. Thomas Edison said he knew a thousand ways to not make a light bulb. Can New York city make the same claim as to how many different approaches they’ve tried and carefully tested in homeless policy? Their approach seems to have been various kinds and forms of government regulation and taxation (rent control, anyone?). But there are other possibilities and I think they might be worth trying.

    As for tax policy, you are absolutely correct that the charitable deduction encourages donations. Certainly that is not the place to look for the strongest distortions of taxation. Of course, people would give regardless of that exemption. I would. And there are millions of people in this world nicer than me (You’re probably one of them, so you’d probably give too).

    On a separate note:
    The estate tax repeal will be interesting, but it is not the estate tax that causes massive giving by the very wealthy. The very rich basically always end up giving away their money, either personally or through their children. It is just very difficult to personally consume that many resources. Several of the most prestigious universities in the U.S. can be traced directly to one or two wealthy benefactors (Stanford=Stanford, Chicago=Rockefeller, Duke=Duke, Carnegie-Mellon should be obvious, I believe Princeton is awash in Carnegie money, etc.) Take a look at all the foundations, universities, grants, libraries, medical centers, etc. built due to wealthy patrons. The real question is who gets to decide how the money is spent, the wealthy person or the state.

  32. David King Landrith on May 25, 2004 at 1:00 am

    NYC wants the Salvation Army to offer benefits to gay partners, and thereby do something that it finds objectionable in order to accomplish something good. On the other hand, the Salvation Army wants NYC to grant it a waiver on benefits to gay partners, and thereby do something that it finds objectionable in order to accomplish something good. I don’t see much of a difference here. It seems to me that siding with NYC comes dangerously close to the naive belief in the moral superiority of democratic government over religion.

    I know very little about the Salvation Army beyond the popular stereotype (e.g., similar to the type of organization that’s portrayed in “Guys and Dolls”), and I have no intention of defending it, per se. Moreover, since there are more possibilities for error than truth, it may very well be the case that religion in general has done more harm than good throughout history. That said, I find it especially ironic that people look to government to protect them from the excesses of religion, whether real or supposed. Government as a social institution has proven more far dangerous than religion, terrorism, and natural calamity combined.

    I think that the real issue is whether religions should let governments use the rhetoric of victimization to bully them into theological opinions. There are many different ways to bully religions–from Edmunds-Tucker to the withdrawal of resources to the re-assignment of contracts. It is true that the Salvation Army is accepting the money from NYC, but one is simply mistaken if he takes this to mean that NYC has (a) the right, and (b) the moral authority to attach whatever strings to it that it wishes.

  33. Jettboy on May 27, 2004 at 2:22 am

    I actually had a discussion about the BYU getting funding and the seperation issue once. The conclusion was that BYU actually wasn’t getting funding. People and projects associated with BYU were getting funding. None of the money goes directly to the University.

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