State, Then Church 

The church, being no more a person than any other corporate body, has no separate rights of its own — and certainly, no rights that would empower it to ignore laws that apply to all Americans.

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In recent months an alarming trend has emerged in American politics that threatens to undermine our country's traditional understanding of the proper relation between religion and government.

This trend has been most evident in the current controversy over a federal mandate that church-affiliated employers — universities, hospitals, etc. — include birth-control coverage in their health-care policies.

America's Roman Catholic bishops, backed by Republicans of other religious stripes, have loudly denounced this requirement as a violation of the First Amendment's guarantee of religious liberty.

Predictably, America's liberals have replied in terms of gender politics, asserting that the Catholic-Republican position is part of an anti-woman agenda. While this may be true, the liberal posture — framed as a clash between competing rights — has the effect of ceding that the Catholic position asserts a valid right.

Nothing could be more irresponsible. The Catholic-Republican position is, in terms of the American political tradition, complete nonsense. But it's dangerous nonsense — part of a broader agenda by which conservatives are attempting to introduce medieval, corporate ideas into America's modern, individualist political tradition.

In simple terms, the conservative position asserts that the Catholic Church possesses a corporate conscience entitled to First Amendment protection. This assertion is precisely analogous to the Supreme Court's decision in Citizens United v. the Federal Elections Commission — that a corporation enjoys a right to free expression entitled to protection under the broad language of the First Amendment.

Both of these conservative positions rely upon a fundamental — and deliberate — misunderstanding of our Constitution, and of the Constitution's roots in Enlightenment philosophy. And this is important, for American institutions can be properly understood only in terms of the philosophical and legal ideas that prevailed at the time they were established.

When the Constitution was written and the Bill of Rights added, American political thought rested firmly on the philosophical basis of social contract theory. While there were strong — even violent — differences over specific policies, these differences were framed within the context of a revolutionary philosophy, hammered out over a dozen years of resistance to the crown, and tempered in an eight-year war for independence.

Thus, there was unusual consensus among America's founding generation concerning the legitimate basis of government. The ideas of English Whig philosophers such as John Locke, and French Enlightenment thinkers such as Montesquieu and Voltaire, informed all sides of the debates, which led to the founding of America's new order.

America's founders were modern thinkers — members of a generation profoundly hostile to medievalism in all forms. To the founders, the very idea of a corporate entity with natural rights would have been anathema.

The language of the Declaration of Independence states this ideology in memorable language: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights. ... To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

To the founders, individuals — and only individuals — were endowed with natural rights. The social contract from which government derived its power resulted from the consent of individuals — not corporate entities.

Now, an alert student of the Constitution might quickly object: "What about states' rights?"

The simple answer is that the Constitution makes no mention of states' rights. The 10th Amendment, which restates and codifies the founders' assumption that the Constitution created a government of limited authority, refers to "powers," not rights.

To be sure, most of the founders assumed that the states could — in a case of serious federal overreaching — exercise an intermediary power between their residents and the central government. But this single exception, arising from historical realities and reflecting the acknowledged federal nature of the Union, is just that — an exception.

Beyond this exception, the founders had no notion that the Constitution embraced rights inhering in any corporate entity. Does this mean that government has the power to interfere in, or prohibit, ordinary worship and other activities deemed central to the operation of a church?

Of course not.

But a church, in American terms, consists of a voluntary association of individual members. Its rights derive entirely from the individual rights of its congregants, including the freedom of association and the right to worship freely. The church, being no more a person than any other corporate body, has no separate rights of its own — and certainly, no rights that would empower it to ignore laws that apply to all Americans.

In the controversy over birth control-coverage, the conservative position is particularly absurd.

The Catholic Church — a self-perpetuating, absolute, medieval monarchy whose official conscience resides entirely between the ears of a single German priest in Vatican City — cannot possibly be treated as having rights under the American Constitution.

The First Amendment protects the natural, individual right of every American Catholic to worship freely — but not a corporate right of a church to operate a hospital, university or other institution in the public sphere while disregarding public policy.

American progressives must be careful not to surrender the constitutional and philosophical high ground on this issue. The crux of the matter is exactly the same as that in Citizens United, the Supreme Court decision.

Just as segregationists attempted in the 1950s and '60s to interpose state sovereignty between white majorities and federal justice, today's conservatives — hostile to the power of the federal government — are engaged in a systematic effort to interpose corporate entities, armed with newly discovered rights, between the state and the citizen.

This effort is medieval in its inspiration; disruptive of the rule of law; dangerous to national unity; and fundamentally at odds with the genius of our Constitution.

It is part of a larger effort to transform the American political tradition, and it should be opposed on that basis. S

'Rick Gray taught history at Midlothian High School and the Appomattox Regional Governor's School, and writes a column for the Village News in Chester.

Opinions expressed on the Back Page are those of the writer and not necessarily those of Style Weekly.

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