Wednesday, July 12, 2006
The faithful get a second amendment
Christian Trejbal
Recent columns
- Making sense of local elections
- Voters have only themselves to blame
- Money flows freely to local candidates
- Candidates contemplate a little big-box store
From the RoundTable blog
A gay marriage ban might be the sexiest, but it is not the only constitutional amendment voters will decide in November. It will not even be the only one at the intersection of religion and government. Religious favoritism offers a double-whammy this year.
The General Assembly sent a trio of amendments to voters. Aside from the discriminatory ban on relationships that approximates opposite-sex marriage, Virginians will also decide whether to increase local authority to grant property tax exemptions for some development and whether to do a little constitutional housekeeping.
Ballot Question Number 2 would strike one sentence from the state constitution:
"The General Assembly shall not grant a charter of incorporation to any church or religious denomination, but may secure the title to church property to an extent to be limited by law."
The problem is that denying rights to certain groups just because they are religious violates the federal constitution's equal protection clause, so that bit of the Virginia constitution is unconstitutional.
Many churches understandably want to incorporate because incorporation makes it easier to own land as an institution and creates a legal entity that can participate in lawsuits.
So what's with the prohibition?
A.E. Dick Howard, a professor of law at the University of Virginia, was the executive director of the 1969 Commission on Constitutional Revision and probably knows more about the state's fundamental legal document than anyone else. He explains that the ban originated in the 19th century.
During the 1851 constitutional rewrite, the framers wanted to ensure Virginia did not treat religious groups like businesses. They had a general distaste for the proposition that worship is a business, and, Howard said, "an excessive concern that the General Assembly might get involved in the affairs of churches." They wanted to prevent government from using incorporation to impose restrictions on faith.
Times have changed. Corporate protection makes sense these days with so much money changing hands in the names of the gods. Yet those 19th century ideals still hold a valuable lesson.
Unlike modern religious activists who advocate injecting Christianity into government, the authors of the constitution recognized that separation of church and state works both ways. It protects the devout from government as much as it protects government from the devout.
Howard and the majority of the 1969 constitution commission believed the ban was unconstitutional and tried to remove it, but religiously inclined lawmakers refused.
Two decades later, a new generation of lawmakers had a different view. In 1996, they asked voters to strike the ban, but Virginians rejected that amendment by a narrow margin.
It took a lawsuit filed by Jerry Falwell's Thomas Road Baptist Church in Lynchburg to set things right. The state mounted only token defense, and, in 2002, the court ruled that Virginia may not discriminate against churches in allowing incorporation.
Since then, the State Corporation Commission has permitted 780 churches and denominations to incorporate or become limited liability corporations.
Yet even though Virginia no longer enforces the prohibition, it remains in the constitution.
Del. Michèle McQuigg wants to change that. The Republican from Prince William County favors tidying up when the state can no longer enforce a law. She sponsored the constitutional amendment through two sessions of the General Assembly.
"The court determined that [the ban on church incorporation] was not constitutional, so the amendment is basically a cleanup," she said.
Just like when lawmakers quickly tidied up the laws when it turned out that Virginia's fornication and anti-sodomy laws were unconstitutional.
Except that never happened. It is still technically illegal for unmarried Virginians to have sex and for anyone -- heterosexual or homosexual, single or married -- to engage in oral or other unapproved, consensual sex acts.
Asked if she would support getting rid of those laws, McQuigg grew testy, refusing to answer. "I've been very busy knocking on my constituents' doors," she said crossly. "I don't have time to go look at all the ins and outs now."
Apparently, none of her constituents is gay, single or enjoys forbidden ins and outs.
Steve Minor, a Bristol attorney who runs the Southwest Virginia law blog at swvalaw.blogspot.com, points to a couple of possible reasons the General Assembly hesitates to strike the fornication, sodomy and a host of other problem laws.
"As a practical matter," he wrote in an e-mail, "the members might think, 'Who wants to run for re-election as the pro-sodomy candidate?' At a more philosophical level, the legislators may keep the law on the books because they believe it is the right thing to do, and they disagree with the Supreme Court's decision."
He is probably right, but that makes the rush to tidy up for churches no less hypocritical. Catering to religious groups apparently takes precedence over standing up for a principle of streamlined law.
If lawmakers wish to clean house, then they should really clean house. There are plenty of antiquated and outright illegal provisions on the books they could remove without even amending the constitution.
I am all for eliminating unenforceable legal detritus, but the raw political opportunism and pandering to the faithful embodied in Ballot Question Number 2 is tough to support.
