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Has the Bush Administration Crossed the Rubicon?

This week brought yet another example of the confusion that arises from any attempt by the Federal Government to become involved in the sanctioning or regulating of religious practice. As Linda Greenhouse reported in the April 19, 2005 edition of The New York Times, in an article entitled "Supreme Court to Hear Case of Dispute Over Religious Group's Use of Banned Drug":

"The Supreme Court added an important new religion case to its docket on Monday, agreeing to decide whether the government can ban the importation of a hallucinogenic tea that is central to the religious rituals of a small Brazil-based church.

"The case raises the broader question of how the court will interpret, in the context of an illegal drug, a law that ordinarily requires the federal government to refrain to the maximum extent possible from interfering with religious practices."

In brief, the Bush Administration is attempting to block the importation of hoasca tea - which serves a similar function in Uniao Do Vegetal ceremonies as peyote in various Native American religious practices. A Federal District Court in Albuquerque, New Mexico first issued an injunction against the government's proposed ban, which was later confirmed by the 10th Circuit Court in Denver, Colorado.

Both of these Courts based their rulings on a 1993 federal law, the Religious Restoration Act, which requires that the Federal government not interfere with religious practice less unless this interference could be justified by a "compelling interest". The Supreme Court later ruled, in 1997, that Congress lacked the authority to impose this requirement on the States. However, it is not the State of New Mexico that is attempting to block the importation of this tea, but rather the allegedly religion-friendly Bush Administration. As Greenhouse later notes in her story: "In an opinion concurring in the 10th Circuit's decision to uphold the injunction, Judge Michael W. McConnell cited the peyote exemption as evidence that the government was free to exercise discretion in such matters.

"Rejecting the argument that the district court should have deferred to the other two branches, Judge McConnell said: "If Congress or the executive branch had investigated the religious use of hoasca and had come to an informed conclusion that the health risks or possibility of diversion are sufficient to outweigh the free exercise concerns in this case, that conclusion would be entitled to great weight. But neither branch has done that."

"Instead, he said, the government had simply invoked the general principle that controlled substances are dangerous. Judge McConnell, a leading scholar on questions concerning the free exercise of religion before he became a judge, is widely seen as a possible Bush administration choice for a future Supreme Court vacancy."

To summarize, we have a Conservative judge, thought to be a potential Supreme Court nominee, expressing the opinion that the Bush Administration's ban on the hoasca tea was arbitrary. Keep that in mind.

A Religious Right to Discriminate?
The Bush Administration's actions in the case take place at the same time that it is intervening, through the Justice Department's religious-rights unit, as a friend of The Salvation Army in an American Civil Liberties Union suit charging religious discrimination against employees in its government-funded social services division in New York City, and on Long Island. As presented in the ACLU's press release, the details of this suit are the following:

"The case arose after The Salvation Army began to require all employees in its Social Services for Children division to fill out a form on which they: a) identify their church affiliation and all other churches attended for the past decade, b) authorize their religious leaders to reveal private communications to the Salvation Army; and c) pledge to adhere to the religious mission of The Salvation Army which, according to The Salvation Army, is to "preach the Gospel of Jesus Christ"."

"Moreover, new job descriptions for every social services employee now require compliance with The Salvation Army's religious mission statement. Previously, the social services unit had its own mission statement which was completely secular.

"The lawsuit asks the federal court to order the 136-year-old charity to stop these practices and to rule that the government funding of the Salvation Army's faith-based discrimination against its social services employees in foster care, adoption, HIV, juvenile detention and other social services is illegal. Agencies for New York State, New York City and Nassau County and Suffolk County are named also as co-defendants."

"The NYCLU lawsuit was filed on behalf of 18 current and former Salvation Army employees of varying religious and non-religious backgrounds. They include many of the most respected senior managers in the agency."

The Bush Administration position in this case is that groups like The Salvation Army should be permitted to harass, and discriminate against, employees who will not, or can not by reason of religious conscience, submit to a theological litmus test. And they should even be able to do this in a state like New York - a state with a large population of atheists and agnostics paying the very taxes that fund these Government programs!

While the Courts will eventually rule on the merits of these two cases, it strikes me that, by virtue of their actions in these legal proceedings, the Bush Administration is in grave danger of running afoul of the Establishment Clause of the United States Constitution.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Through its actions in these two challenges, the Bush Administration is sending an unmistakable message that it considers certain religious groups as somehow more deserving of the Federal Government's respect than others.

A tiny hybrid Christian-Shamanistic sect that seeks to import the very same tea that it uses as part of its ceremonies in Brazil is vigorously opposed; while a mainstream Christian group that seeks to subject employees-taxpayers to both an undue invasion of their privacy, and ultimately, religious discrimination in employment is supported!

This is a very dangerous precedent to be setting - inasmuch as many mainstream religions are based on premises that at least a substantial percentage of reasonable men and women would consider highly subjective, if not akin to the stuff of mythology or science fiction.

As challenging as this characterization might appear, let me remind the reader of what Thomas Jefferson had to say with regard to the authenticity of the character of Jesus, as suggested by certain elements of the Gospels, in an August 1820 letter to William Short:

"For if we could believe that he really countenanced the follies, the falsehoods and the charlatanisms which his biographers father on him, and admit the misconstructions, interpolations and theorizations of the fathers of the early, and fanatics of the latter ages, the conclusion would be irresistible by every sound mind, that he was an impostor."

For more of Jefferson's thinking with regard to the premises of Christianity, I refer you to my earlier column, The Gospel According to Thomas.

Hence, at least in the mind of the author of The Declaration of Independence, even aspects of Christian religious dogma and practice, as specifically advocated by groups like The Salvation Army, cannot be treated as above scrutiny, or somehow factual - and hence deserving of any better treatment by Government than any other religious dogma or mode of spiritual practice.

Bankruptcy and Abortion
I further note that the Bankruptcy Bill that George Bush signed this week contains no provision that prevents anti-abortion activists from exploiting the Code in order to avoid responsibility for the damage they do. Such a provision was passed by the United States Senate in previous sessions, and again offered by New York's Charles Schumer - but rejected along party lines, for fear of alienating Tom Delay's House of Representatives, and thus jeopardizing the bill's passage.

However, this was an indispensable provision for someone like myself who both supports abortion rights and lives his life according to spiritual principles. How can that be, you might ask? How can someone both support abortion rights and call himself "spiritual"?

I believe that a soul exists before conception, continues after death, and incarnates over time in different bodies - as espoused by over a billion Buddhists and Hindus around the world, Pythagoras and Plato in ancient Greece, and by adherents of a large number of other spiritual, metaphysical, and religious traditions.

Any birth involves a specific agreement between two souls - the souls of the mother and the would-be child. Unless both are willing, there is no agreement. When there is no agreement, the child soul finds another vehicle for incarnation.

Even within this multi-life context, however, the decision to terminate a pregnancy is necessarily a serious one - and one that is ideally both rare and legal. I also believe that the best way to make abortion ultimately unnecessary is through responsible sexual behavior, including the extensive use of contraceptive aids.

I strongly object to the Bush Administration's notion that while taxpayer funds can be used by "favored" religious groups to discriminate against non-believers, they must not be used to fund the only credible and proven method for reducing unwanted pregnancies - contraception.

I strongly object to the notion that "faith-based" activists, be they animal rights or anti-abortion activists, should be protected from facing the full weight of the law when they violate others' rights, or destroy their property.

I see an Administration that does not respect my spiritual beliefs as one that has crossed the Rubicon, and violated the Separation of Church and State.

I have no idea if Jefferson and Madison, were they alive today, would view my spiritual convictions as persuasive. However, I am confident that they would not hold them, or the beliefs of atheists and agnostics, as less worthy of the protection of the Federal Government than those of the conservative Christians who are dictating Bush Administration policy in these areas. Furthermore, I believe the Framers knew exactly what they were doing when they created the First Amendment. As I've argued in previous columns, I believe that the Founding Generation was likely guided by the unseen hand of Nature's God in the construction of the United States Constitution.

I believe that the consciousness that gave birth to all understood that our Separation of Church and State - and the revolutionary model that it represented for the world - was the best way to end the murder and mayhem that had taken place for thousands of years in Its name, at least within the borders a single nation.

Of course, I can't prove any of this - any more than orthodox Catholics and Christians can prove the existence of heaven and hell, or that life "begins" at conception.

Does that make my spiritual beliefs any less worthy of protection by the Bush Administration?

Isn't that obviously what the Founders and Framers intended the Separation of Church and State to do?

Matthew Carnicelli, © 2005. All rights reserved.
Originally published on April 24, 2005, as part of The Way of Politics series.