- The Washington Times - Tuesday, July 24, 2001

President George W. Bush promised sincere homilies to federalism. He promised to reject an arrogant "one size fits all" mentality that makes state and local governments subservient to a putative national omniscience.

He promised to discredit the cynical French axiom, "The more things change, the more they stay the same." In sum, Mr. Bush promised an electrifying new birth in federal-state relations; principles would not crucified on a cross of squalid opportunism.

Accordingly, what is to be made of the president's snappy salute to the war on federalism embraced by his charitable choice legislation passed last week by the House of Representatives? The bill offers to religious recipients of federal social service grants a national shield to fend off state and local laws that bar employment discrimination based on sexual orientation.

At present, approximately a dozen states and 200 municipalities sport such anti-discrimination protections. Neither Congress nor the president maintain that the political process that culminated in protecting gays and lesbians from employment discrimination in these jurisdictions was either skewed or tainted not genuinely representative of state and local sentiments.

Indeed, to even insinuate that heterosexuals are a discrete and insular minority needing political protection from a homosexual juggernaut would be laughable. The vast majority of state and local jurisdictions and the national government have rebuffed initiatives to bring homosexuals into the sweep of anti-discrimination laws. In Maine, a popular referendum recently upended such a state legislative initiative, and a similar popular vote is scheduled next year in Maryland to overturn "gay rights" legislation passed by the state legislature.

Further, the United States Supreme Court held in Corporation of Presiding Bishop vs. Amos (1987), that no constitutional barrier prevents state or local jurisdictions from granting religious organizations exemptions from anti-discrimination statutes. States and localities may even criminalize homosexual practices under the 1986 Bowers vs. Hardwick precedent.

The debates and varied state and local responses to employment protections for homosexuals thus represent federalism at its zenith. That should command a national coronation, not a national coup d'etat.

President Bush's stiletto to federalism has been heretically defended on the theory that the constitutional protection of the free exercise of religion is violated by anti-discrimination laws that conflict with a religious creed, including a belief that homosexuality is unforgivable and beyond salvation. The Supreme Court, however, upheld anti-polygamy laws in Reynolds vs. United States (1879) and its progeny despite their intentional attacks on the Book of Mormon's teaching the imperative of plural marriage.

In Prince vs. Massachusetts (1944), the court denied a free exercise challenge to a state child labor law that punished a Jehovah Witnesses guardian for permitting a 9-year-old child to engage in "preaching work" and the sale of religious literature, although both were acting in accord with their religious beliefs. And conservative icon Justice Antonin Scalia sermonized in Employment Division vs. Smith (1990) that the free exercise clause was undisturbed by criminalizing the religious use of peyote.

Writing for the majority, Justice Scalia elaborated that freedom of religion does not bar application of a "neutral, generally applicable law to religiously motivated action."

This is not to say President Bush's charitable choice blitzkrieg against federalism in federally funded social service programs is unconstitutional. The Supreme Court has repeatedly sustained federal grants conditioned on compliance with federal mandates despite their encroachments on state sovereignty, such as a state drinking age limit of 21 to receive full federal highway funds upheld in South Dakota vs. Dole (1987).

If there were some plausible showing that religious organizations might be impaired in assisting social service recipients if forbidden to exclude homosexuals from secular employment, then the charitable choice surrender of federalism might be justified. States or localities cannot be permitted to thwart legitimate federal objectives. But no such showing has been either attempted or made.

Indeed, charitable choice funds are explicitly confined to the secular social service dimensions of religious organizations; they cannot be used to proselytize. How can hiring a gay janitor to clean up after a federally funded soup kitchen operated by a religious organization closes for the day be said to confound the humanitarian mission? Doesn't Mr. Bush's unheroic charitable choice debacle smack of the Constitution of the Confederate States of America. It was born of states' rights rhetoric, but nevertheless prohibited any local option for emancipation.

President Bush should do better. He should insist on compliance with state and local anti-discrimination laws as applied to secular functions for all charitable choice recipients, faith-based or otherwise. He should instruct that if federalism means anything, it means accepting a state and local diversity that we dislike, not just a diversity we love. Otherwise, how can President Bush honestly proclaim himself a man of high principle, not a politician of low means?

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