Notwithstanding the all-consuming salience of the election, one day afterward the Supreme Court will consider another fateful question in Fulton v. City of Philadelphia. On the surface, the case concerns a city commissioner’s candid animosity toward traditional Catholicism. But it also involves a much deeper problem—the systemic administrative slant against orthodox Americans.
In Fulton, the commissioner of Philadelphia’s Department of Human Services barred Catholic Social Services (CSS) from placing foster children—allegedly because CSS discriminated against gay families. But CSS has never engaged in such discrimination. Families seeking foster children choose the charities through which they want to secure a placement, and gay families have not thus far chosen CSS.
Instead, the discrimination in Fulton came from the commissioner, who preemptively barred CSS from providing placements on account of its religious views on gay marriage. In explaining her decision, she asserted that CSS should follow “the teachings of Pope Francis” and said that “times have changed,” “attitudes have changed,” and it is “not 100 years ago.”
Thus, notwithstanding that Philadelphia claims to be fighting Catholic discrimination against gay families, the only discrimination thus far has been administrative discrimination against Catholics, accompanied by open religious animosity. Fulton therefore comes to rest on personal prejudice and, more substantively, on structural administrative discrimination against traditional Catholicism and other orthodox beliefs.
Voting. How is administrative policymaking discriminatory? Administrative power leaves ordinary Americans, including religious Americans, with no opportunity to vote for or against their administrative lawmakers. Unelected bureaucrats can impose policies without concern about being voted out of office. Unsurprisingly, they feel less accountable than elected legislators to religious and other ordinary Americans.
This isolation of policymakers from politics was, of course, one of the reasons for establishing the administrative state. It is often said that the goal was to protect experts from political pressure, but from the outset, an underlying aim was to cut ordinary Americans out of key decision-making.
The difficulty, from the perspective of many educated and genteel Americans, was that religious, ethnic, and racial minorities increasingly enjoyed political power. Writing in “The Study of Administration” (1887), Woodrow Wilson—founding father of the American administrative state—worried that, because of the nation’s diversity, the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” Thus, “in order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.” Rather than try to persuade such persons, Wilson welcomed administrative governance. The people could still have their republic, but much legislative power would be shifted out of the elected legislature and into the hands of the right sort of people.
Even if Wilson’s overt prejudice no longer infected administrative power, administrative power would remain systematically discriminatory, because removing legislative power from the representatives of a diverse people has implications for minorities. Individually, administrators may be concerned about all Americans, but their power is structured in a way designed to cut off the political demands with which, in a representative system of government, distinctive communities—be they local, ethnic, racial, or religious—can protect themselves.
Of course, all ordinary Americans suffer this exclusion from the political process. But other layers of the problem give it a distinctive slant against many religious Americans.
Voice. In addition to being at the mercy of bureaucratic policymakers who are not worried about their votes, religious Americans cannot speak out in the same way as their fellow citizens because of the Internal Revenue Code. Section 501(c)(3)—supplemented by Section 170—limits religious organizations from fully participating in political speech that might influence voters or legislators. Religious Americans thus lose not only voting, but also voice.
The administrative control of speech under the Internal Revenue Code does not equally affect all religions Americans; it has particularly severe consequences for individuals who are relatively orthodox—that is, for persons who are distinctively dependent on their religious organizations to express their views in politics. Such persons are doubly excluded from the political process—both in being unable to elect their administrative lawmakers and in being unable to engage in full political persuasion through their religious organizations.
It is no coincidence that this pair of speech restrictions especially affects orthodox Americans and Catholics, for these restrictions were first proposed by the KKK. In the 1920s, Imperial Wizard Hiram Evans led his organization to national fame and influence in part by aligning it against Catholicism and other theological orthodoxies. Although the KKK was in decline by the 1930s, Evans still espoused its agenda, not least the goal of attacking ecclesiastical speech in politics. Like many other nativists, he saw the Catholic Church as the prototypical danger, but more generally sought to suppress any political speech by churches and related organizations.
Evans therefore proposed in 1930 that churches should be barred from influencing voters and legislators. Four years later, Congress subjected nonprofits to one of these limits (confining speech influencing legislation). Two decades later, it adopted the other restriction (barring speech on voting). It is thus no accident that Catholics and other relatively orthodox Americans have been limited in their voice. Nativists had long sought to limit their participation in politics, and when the Klan became the most politically influential nativist organization, its leader proposed such limits.
Ethos. Accentuating this dual exclusion from the political process is the administrative ethos of rationalism and scientism, which tends to be unsympathetic to religion, especially relatively orthodox religion.
This is not to say that administrators are necessarily personally prejudiced—though some (as in Fulton) clearly are. Nor is it to dispute the value of reason and science. But rationalism and scientism are not the same as reason and science, and because of these -isms, administrative bodies have institutional commitments that make them indifferent and even hostile to much religion—at least as compared to the attitudes of elected legislatures.
The prejudice has been a central feature of administrative power since its inception. When Wilson enumerated those who were not of the “older stocks” and were thus difficult for someone like him to persuade, he began with “Irishmen.” And administrative power continues to serve anti-orthodox and especially anti-Catholic prejudices, as the bureaucratic expressions of religious animosity in Fulton demonstrate. Religious prejudice and discrimination have no place in American law—except, apparently, if they are administrative.
The resulting difference between representative and administrative policymaking is painfully clear. When a legislature makes laws, the policies that bear down on religion are made by persons who feel responsive to religious constituents and who are therefore usually open to moderating the laws or offering exemptions.
In contrast, when policies come from administrative agencies, they are made by persons who are chosen or fired by the executive, not the public, and so are less responsive than legislators to the distinctive needs of a diverse people. The bureaucrats, moreover, are protected from the full extent of political opinion by a tax code that limits the ability of orthodox Americans to voice their arguments through their ecclesiastical organizations. Such Americans cannot fully present their views either to the bureaucrats who control their lives or even to the legislature, which allegedly oversees the bureaucrats. Topping it off, the unelected and unreachable bureaucratic policymakers are expected to maintain an ethos of scientism and rationality, which—however valuable for some purposes—is indifferent and sometimes even antagonistic to relatively orthodox religion, let alone the particular needs of local religious communities.
None of this is to suggest that government should disregard education, science, or any resulting expertise. Agency knowledge can be valuable. But the shift of regulatory power from elected legislatures to systemically unsympathetic administrative agencies has discriminatory consequences. On the surface, administrative policies tend not to discriminate against religion. But when the underlying policymaking process is discriminatory, even facially equal policies will tend to be slanted. Administrative power is a tilted game—at least for relatively orthodox Americans.
Although the Supreme Court may be hesitant to address so sobering a problem, the justices need to acknowledge it. Religious discrimination is structurally embedded in administrative power, and if Americans must live with this discrimination every day, it is not too much to ask the justices to recognize the injustice.
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.
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