On Paying the Piper, Yet Again

Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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61 Responses

  1. Kyle Cupp says:

    I may agree with this, but permit me a question. Should the state have a say in any and all church affairs if the church in anyway takes the public’s money, or should the state have a say only regarding those specific affairs for which that money is given?  Or something in between?


    • Jason Kuznicki in reply to Kyle Cupp says:

      Only for the purpose given, I would say.  Otherwise a penny in the coffer would elect the Pope.  Or parallel nonsense in other churches, which would be equally impermissible.Report

  2. Robert Cheeks says:

    Allowing the mob to vote themselves largesse was the first great mistake. The General gummint, in a republic, has no business in redistributing publick monies to any individual, church, union, corporation, any private organization, for any reason beyond those reasons assigned prior to Mr. Lincoln’s war of Aggression.Report

  3. Chris says:

    It should be noted that the Rasmussen poll is not the only one on the subject out there, and in general, and in this case in particular, Rasmussen data should be taken with a grain, nay a large pile (of the sort used for storing salt for icy roads) of salt. I know Tom only cares about bias when it’s on the other side, but still.Report

  4. Chris says:

    On the subject:

    Does the institution take state money?

    If yes, then the state may withdraw that money at any time for failure to comply with clearly stated policies for how it’s to be used.

    If no, then the state needs to back off and let the church run its own affairs without interference. It doesn’t get a choice. That’s what it has to do.

    This seems right to me with regard to things that they spend the government’s money on. With respect to things that are regulated more generally, I’m not sure how this applies. I suppose it’s meant as a somewhat libertarian position (I’m sure you’d rather the state not give the money in the first place), but it seems that if there’s a law governing a certain type of behavior, that law should apply regardless of whether the entity performing the behavior gets funds from the government.Report

  5. Plinko says:

    As much as this says a lot of things that work with my view of the matter, the question I have is – would you consider tax expenditures to count as taking state money?

    I think it’s a thorny question given the tremendous tax favors given to religious, charitable and non-profit institutions in the U.S. There really aren’t any significant religious organizations out there (that I know of) that aren’t getting significant tax favors from federal, state and/or local governments.

    By the logic above, they can accept those tax favors and comply or reject them and act as they please. I can get behind that, but it’s a lot more controversial than if they only accept direct spending. Limiting it to direct spending has a lot going for it, but as we’re all well aware – that just further encourages the use of tax expenditures to dole out benefits to preferred groups without any of the obligations and clarity that come with direct spending.Report

    • Jason Kuznicki in reply to Plinko says:

      As much as this says a lot of things that work with my view of the matter, the question I have is – would you consider tax expenditures to count as taking state money?

      If you mean the tax break for nonprofits, no.  For two reasons:  First, because that tax break is extended regardless of purpose or policies advanced.  The Catholic Church gets it, but so does the Cato Institute.  And the Center for American Progress.  It’s very, very policy neutral, and as such I don’t see it as an issue.Report

  6. boegiboe says:

    What about not receiving government funds, but getting a tax break provided to charities by a law separate from the one giving tax breaks to churches?Report

  7. Teacher says:

    All I know is that I’m disgusted by this whole affair.

    I’m Catholic.  Mrs. Teacher and I use contraceptives mostly because I think the church has the wrong read on what God wants of our bodies (why make sex so much fun if we’re only supposed to do it often enough to have as many kids as we can afford (two)?) and because she’s not Catholic.

    But at the end of the day, how many other things are we going to let religious employers mandate to their non-religious employees?

    Do they get to start not providing family leave for men on the religious ground that it’s “Women’s Work” to stay home with the baby?  Do they get to start hiring and firing based on what the non-religious employees pack for lunch?

    For Birth Control and all other health matters the only people who should be involved in the conversation are the doctors and the patients.  And if the the health insurance covers “Medical needs” and the doctor says birth control is a medical need then it’s cover.

    I’m shocked that there’s room for even a discussion about this by the state.  “War on religion”?  They take public money to impose their religious doctrine on their employees.  They can just as easily choose not to take federal money and frankly I would have preferred a harder line because I think at the end of the day the college of cardinals doesn’t care that so much about this as to shut down all Catholic hospitals over it.  They would have come around and in 6 months it would have been forgotten.

    Of course… for those 6 months it would have hurt and stung.  Silly me, I forgot that getting re-elected was more important than doing what’s right.Report

  8. BlaiseP says:

    Were it the case that the Catholic hospitals were obliged to perform abortions or distribute birth control, there might be some case for discrimination.   This is strictly a matter of insuring employees, ensuring women are not the subjects of discriminatory policy regarding the services on offer through that insurance.

    I simply do not see the problem.   This is a simple case of gender-specific discrimination and nothing else.Report

  9. Michael Drew says:

    That’s a fine libertarian position, but clearly our state does not stay out of the business of deciding how private entities of all kinds spend their money, conditioned on certain actions.  So once that Rubicon has been crossed, do you have a position on whether religious-affiliated organizations that employ large numbers of people engaging in activities that have exact secular counterparts ought to be able to claim a religious conscience exemption from laws that regulate those activities in ways that are general to all entities that undertake them, not directed at those particular religions (including directing how private funds must be spent in undertaking the activity)?

    You don’t actually have to answer that if you don’t want to; you can certainly say you simply don’t accept crossing that Rubicon. But it certainly isn’t a novel idea that there are mandates for how private organizations must spend their money in the course of engaging in an activity that the government has determined needs to be regulated publicly, regardless of whether the organization “takes public money” in the course of the activity.  That’s what employment law is, for example.  You can object to it, but it isn’t an objection having to do with religious objections to those mandates.  The notion that the government regulating how private money is spent pursuing private activities is an abomination is just an uncomplicated radical libertarian idea; once we accept we’ve rejected it – and we crossed that point long, long ago  (and the Church makes no such general libertarian argument the basis of its objection) – it’s of no use in sorting out the claims being made by the church.Report

  10. Will Truman says:

    I used to think along the lines of this post, but the more I have thought about it, the less I buy it. I think it applies in some cases (the government gives a state money for special ed, it does have to be spent on special ed), not in others (A woman who uses public roads cannot be denied the right to an abortion because she has accepted an in-kind contribution for the government.)

    It’s not clear to me that it should apply in this case, or not apply in this case.


    • Teacher in reply to Will Truman says:

      Does it help consider that we’re applying forced (effectively) adherence to religious doctrine upon people whose work has nothing to do with religious doctrines?

      Assume first that birth control is so expensive that you cannot have it without insurance coverage.  This is debatable but let’s take it as a postulate for the argument that follows.

      Now consider the case of a janitor who is employeed because she does the absolute best job cleaning out OR’s.  She, however, is not a member of a religious group that forbids birth control.  She is hired, and paid in part with state funding, to clean OR’s.  Not to profess religion, not to teach dogma.  She takes the job knowing she has to walk past chapels and crosses, and iconary and listen to prayers3 times a day (two in the morning, one at night).  These do not impact her own free exercise of religion.

      But, because her otherwise secular job is also funded by a religious organization, their dogma of “no birth control” is forced on her.  Her choices are “seek another job for someone else” or accept being forced to follow their religion.

      For non-religious work I have a problem with a religious litmus test for employment.


      • DensityDuck in reply to Teacher says:

        “Does it help consider that we’re applying forced (effectively) adherence to religious doctrine upon people whose work has nothing to do with religious doctrines?”

        Why can’t they get a job somewhere else?  It’s not like these people didn’t know they’d be working for the Catholic Church.Report

        • Teacher in reply to DensityDuck says:

          8.3% unemployment springs to mind…

          Also, really, those businesses, until now, didn’t recruit with a “work for us we’re Catholic”.  They went out and got the best and the brightest and let them invest in their careers.  Maybe doctors are different than teachers but you don’t just walk out the door over a policy change in my job and find one somewhere else a few days later.

          And who knows what was said before this?  How much the role of the church was down played as a factor…


        • wardsmith in reply to DensityDuck says:

          The feds give hundreds of millions per year to Planned Parenthood and contraception is free therein. Therefore the state has /already/ paid for it and can’t ask the religious institution to pay for it. My Libertarian view at any rate.Report

  11. Jonathan says:


    Do the hospitals receive direct funding from the government, or do they get money from the government for services they provide to people (ie is the government paying on behalf of the individual)? It seems to me that the two are quite different, and depending which it is (or if it is a combination) would help me evaluate your argument.Report

  12. Fnord says:

    If the government decided that Catholic hospitals were ineligible for Medicare for the simple fact of being Catholic, that would be wrong; not just bad policy, but a violation of Church and state. I think (hope) that’s not a controversial position.

    Contrariwise, religious institutions, even fully private ones, don’t get a general purpose exemption from general purpose laws. This is (again, I think) non-controversial for stuff like human sacrifice. And it’s status quo and settled law for things like sacramental cannabis and peyote, even if it might be controversial in some quarters.Report

  13. Gorgias says:

    I’m pretty sympathetic to the above argument, incorrigible atheist that I am, but I think my biases might be warping my thinking.  Consider the analogous situation of the federal government making grants to state governments contingent on their drinking age laws. Procedurally, this seems fair to me, in the same way the above does, yet the federalist and libertarian in me revolts, because in practice it means that drinking age laws are set by the federal government.

    Dangling a carrot in front of religious organizations in order to get them to comply with secular standards could have a similar effect.  It seems like the kind of government entanglement with religious practice that the 1st amendment was intended to prevent.  On the other hand, the first amendment is not supposed to favor religion as such over nonreligion, and preventing this sort of thing would seem to allow Native Americans to take public money to buy their peyote with.  Maybe the solution is to prevent all public funding of religious institutions because this implicit carrot is itself an entanglement of state and religion, though then again maybe that just favors nonreligious organizations over religious ones.  (The more I think about establishment cases, the more it seems to me that the “not favoring religious practices as such” portion of the jurisprudence contradicts the “entanglement of state and religion” jurisprudence).Report

    • Jason Kuznicki in reply to Gorgias says:

      A lot depends on the packaging of the deal.  But it’s still going to serve us well to keep first principles in mind.  As the great libertarian commentator Sheldon Richman put it, “Can you imagine the consequences if people came to believe that no one should ever be forced to finance what he or she finds abhorrent?”

      The consequences would be anarchy, of course.  And if we could figure out a way to get there without killing each other or doing more harm than we already do right now, I’d happily take that route.  (I’m not an anarchist, no, but an agnarchist — I don’t know if anarchy can ever be made to work, appealing though I do find it in some ways.)

      So we’re back to the morass of ordinary public policy, where  it seems fair to turn the question around.

      Liberals:  Imagine that Barack Obama is caught in some really awful scandal.  Rick Santorum is elected president, along with strong Republican majorities in Congress.  “Two can play at THIS game,” they say.

      No more federal funding for liberal charities, unless they start excluding gays and lesbians — as the Salvation Army currently does.

      No more federal funding for universities unless they teach that abortion is murder.

      No more federal funding for your state if it isn’t a right-to-work state.

      No more Medicare support unless you REFUSE contraception.

      And so forth.

      My guess is that you’d turn on a dime.  Meanwhile, I’ll happily stand on the sideline, as I’m doing here, and remind you that this is why we shouldn’t make everything dependent on the federal teat.


      • Chris in reply to Jason Kuznicki says:

        What Obama is saying, which apparently was actually the law of the land already, is that employers, including the church, can’t discriminate against women, because it is unconstitutional. Not covering birth control discriminates against women, therefore, you can’t do it.

        Suggesting that it’s the same thing for a president (actually, three presidents, and Congress in this case, but only a president in yours) to demand that companies discriminate against certain groups seems like the opposite. It’s unconstitutional and illegal for companies to discriminate against women and illegal (and perhaps unconstitutional) for them to discriminate against LGBTs, but it’s the same thing for one president (3 presidents, and Congress) to demand adherence to the law and Constitution, and for another to demand ignoring it?Report

        • Jason Kuznicki in reply to Chris says:

          As any conservative would tell you (mind you, I’d disagree):  “Nothing in the above constitutes discrimination against women. Besides, we hold the purse strings now, so whatcha gonna do?”

          Surely you anticipated this reply, didn’t you?Report

          • Chris in reply to Jason Kuznicki says:

            Of course, but “Nah nah nah boo boo” turns out to not be a very good argument in court, which is where this would go very, very quickly.Report

            • Patrick Cahalan in reply to Chris says:

              Santorum could stack the court.Report

              • Chris in reply to Patrick Cahalan says:

                What’s he going to do, kill off the sitting judges? This is getting a bit far fetched. If you want to ask me what I would do if a Republican president decided to openly discriminate against a minority group or women, and Congress and the courts (due to assassins and emergency appointments) did nothing about it, then my answer is, I’d move to Canada.Report

            • Chris in reply to Chris says:

              To add to that: ruling out the use of medicine that only women use is pretty much what discrimination against women means. Not hiring people based on their sexual orientation is pretty much what discrimination against LGBTs means (unless they’re not hiring straight people, in which case it’s pretty much what discrimination against heterosexuals means).Report

              • Jason Kuznicki in reply to Chris says:

                The argument might easily be made that denying federal funding for contraception is not discrimination against women.

                It’s honoring them, and their unique contribution to society, which is giving birth.  Besides, they’re always free to buy contraception with their own money anyway.

                If we argue about that (privately, I think it’s preposterous), then we are not arguing about the original principle, which was advanced by the left, to the effect that the government should be the arbiter of values in this area. We’re arguing about something else entirely.

                I’m just asking if you’re prepared to embrace all the consequences of saying that the state should decide for everyone.  It appears that the answer is no.Report

              • Chris in reply to Jason Kuznicki says:

                Besides, they’re always free to buy contraception with their own money anyway.

                This is the easiest part to argue against, because it misses the point. If you provide drug coverage, and you refuse to cover drugs that only women use, then you are discriminating against women. The law, as it’s been since 2000, was that you could either provide the drugs that only women use, or offer no prescription drug coverage at all.

                As for the argument that it’s not discriminating against women to leave off medicine only used by women, because it’s actually honoring women to deny them stuff, I would enjoy being the lawyer that went up against the administration making that argument in court. I can imagine the analogies. “No, your honor, not allowing black people to use this fountain actually honors black people, and their unique contribution to society of not drinking in the same place that white people drink.”Report

              • DensityDuck in reply to Chris says:

                “If you provide drug coverage, and you refuse to cover drugs that only women use, then you are discriminating against women.”

                Few insurance plans offer coverage to purely-cosmetic surgery; is this discrimination against women and transsexuals?Report

              • Jaybird in reply to Chris says:

                “No, your honor, we’re just making them pay for it the way that everybody else has to pay for it when their insurance doesn’t cover it.”

                Because there is a difference between me saying “you shouldn’t drink and I’ll punish you if you do” and “buy your own wine”.Report

              • Chris in reply to Jaybird says:

                Except these are medicines prescribed by a physician. There is a difference. What it’s saying is, “Men get the health care their physician provides covered. Women, they get most of it covered.”Report

              • Jaybird in reply to Jaybird says:

                And so we’re back to an idea that “coverage” is a public good to the point where it ought to be protected as a right by the government.

                Unless, of course, men didn’t have a vaguely analogous thing covered…


                Is that accurate?Report

      • Tom Van Dyke in reply to Jason Kuznicki says:

        Jason, more interesting would be if you follow up this line, the state getting its fingers into every facet of life.  The net effect is to drive every other entity out if it does not knuckle under to the power and philsophy of the state.

        Ross Douthat covers this problem well.


        Since the premises of your argument here are those of law and of the states power to dictate that reality, there is no choice but to knuckle under to Leviathan or evacuate the public square.  But this is the end of “society”; all that’s left is the state.Report

  14. wardsmith says:

    Obama has already caved on this, so it is a moot point. Most interesting is how he decided to carve up the baby. Using the coercive power of the government on corporations which don’t represent large voting blocks (unlike Catholics who do), his highness has decided to force insurers to voluntarily GIVE contraceptive medicine to their insured without charging for it whatsoever. Nice deal if you can get it. I wonder what he’ll decide corporations need to “give” next year? Perhaps large donations to the Democrat Party?

    Yes liberals will whine at what I just said, but nothing like they’d whine if the shoe were on the other foot.Report

    • Jeff in reply to wardsmith says:

      I haven’t heard one word of protest from the insurance companies (the ones who killed thousands per year through recission, but that was OK).  This makes sense:

      “White House Amends Birth Control Mandate: Contraceptive Coverage to be Offered Directly from Insurers,”

      Insurers will create policy not including contraceptive coverage in the contract for religious organizations that object. Second, the same insurance company must simultaneously offer contraceptive coverage to all employees, and can not charge an additional premium. This provides free contraceptive coverage to women. The reason this works for insurance companies is because offering contraception is cost-neutral and cost-effective; companies realize the tremendous cost benefits of spacing pregnancies, and limiting unintended pregnancies, planned pregnancies and health benefits of contraception.


    • Will Truman in reply to wardsmith says:

      This isn’t a cave. This is, rather, a great way for Obama to look like he took the middle ground on a policy that comes across to me as inconsequentially different from the previous one.Report

      • greginak in reply to Will Truman says:

        Exactly. Everybody pretty much got what they wanted and he worked to find a middle ground. The war on religion peeps were never going to vote for him anyway.Report

      • wardsmith in reply to Will Truman says:

        By bending the Commerce Clause beyond all recognition, the gov’t has instantiated a new paradigm of coercive behavior to suit “federal” desires. This isn’t something the “people” voted on, this is something handed down from on high, but not the ten commandments, just the BHO commandments. This entire episode is very Machiavellian. I’m guessing they didn’t burn the midnight oil to append the second option, just waited for some dust to settle and made sure they timed everything for a Friday news cycle.Report