Money Laundering: The Establishment Clause Escape Act

Stanley Fish in his NYTimes Select column explains the largely rhetorical rhythm of the Establishment Clause. Like a silt island in a river turned to solid ground by fora and fauna, the Establishment Clause can be all but ignored by the current of taxpayer supported religion. Fish cogently argues the Establishment Clause's futility, and indeed I agree with him having studied some of the cases he cites like Everson v. Board of Education, Rosenberger v. Rector, and Mitchell v. Helms. Last week's ruling in California in favor of allowing tax-free bonds to be issued to support capital expenditures at religious schools is the latest in what Fish calls the Money Laundering Establishment Clause circumvention.

Laundering can take many forms, argues Fish, but after reading his blog I admit laundering is easy spot. Writing for the majority, Justice Joyce Kennard argued that no-tax bonds are “simply a mechanism by which the government extends available tax to private individuals." Kennard argued it's the private individual's choice as to whether he or she wants to buy the bond and support the school.

Of course taking the argument a step further complicates Kennard's reasoning. Remember that nothing is free, and tax-exempt bonds fall far short of amounting to nothing. Cheap ideologues bent on promoting religion cheaply with public funds can make the argument that to disentangle incidental versus direct benefits when it comes to funding religion is impossible. (i.e. where's the Money Lebowski!?) As long as the Establishment Clause can be confounded by diverting attention away from the true two-way Jeffersonian and Madisonian notion of protecting the state from religion and protecting religion from the state we'll all continue to pay for the advancement of religion whether we want to or not.

Thanks Dr. Fish for that hortatory entry.