The NYT series on religious exemptions

This article, from the Business & Media Institute's web site, contains what I think are some powerful critiques of the Times' recent four-part series, "In God's Name," on religious exemptions.

And here is John DiIulio, in a piece called "The New York Times v. Religion:  So Much Nonsense in a Four-Part Series":

Times readers might be interested to know that most state constitutions single out "faith groups" for special legal burdens and restrictions. About two-thirds of state constitutions have a generic no public funding clause. And most have a specific no funding for religious education clause. As University of Chicago law scholar Philip Hamburger summarized in his book Separation of Church and State, many such antireligion state constitutional provisions have their political roots in rabidly anti-Catholic 19th-century nativist movements.  . . .

Times readers might be invited to imagine an America in which all of those ostensibly favored faith groups disappeared tomorrow. Who would suffer the most, and who would have to pay to replace the social services that they now provide? For instance, pick ten big cities, and ask how many low-income non-Catholics (Title I students, Medicaid-eligible patients, etc.) are served by Catholic elementary schools, high schools, colleges or universities, and hospitals? Next, try to figure out who is subsidizing or "accommodating" whom: How much would it cost to provide the same services without religiously mobilized volunteers and institutions in the mix? Studies being conducted by me and others at the University of Pennsylvania and Harvard University aim to estimate the "replacement value" of such Catholic "civic assets." Stay tuned. . . .

And here is Eugene Volokh (UCLA):

But note how unhelpful the appeal to separation of church and state is here. The exemptions discussed in the story generally involve the government's decision not to apply various regulations and restrictions (various child care center regulations, employment discrimination laws, financial disclosure laws for charities, and the like) to religious institutions. A few involve exemptions for religious individuals, but most involve religious institutions.

Such decisions to leave church free from state regulation, it seems to me, are separation of church and state, at least under one plausible definition of "separation." It is abolishing the affirmative action for religion, by applying laws to religious institutions the same way it's applied to other institutions, that would bring church and state closer, here in the sense of having the state have more authority over the church. In fact, one form of "separation of church and state" that many "separationist" judges and legal scholars have urged is (1) discriminatory exclusion of religious institutions from many generally available government-run benefits (such as school choice funds), but (2) preferential exemption of religious institutions from many generally available government-imposed restrictions (such as many aspects of employment laws, historic preservation laws, and the like).

Of course, one can define "separation of church and state" to mean "the state ignoring people's and institutions' religion and religiosity, and treating everyone equally regardless of their church affiliation or lack thereof." This would mean (1a) evenhanded inclusion of religious institutions in generally available government-run benefits, (1b) prohibition on preference for religious institutions in such benefits, (2a) evenhanded application of generally applicable laws to religious institutions and people (though perhaps with some exemptions to some laws for all conscientious objectors to that law, whether the objection is religious or secular philosophical), and (2b) prohibition on laws that single out religious institutions and people for special burdens. Some judges and legal scholars have endorsed this view, though generally without calling it "separation." (My view comes close to this one, though with a few exceptions that I don't want to dwell on here, since this post is about the phrase "separation of church and state" rather than about any particular legal proposal.)

One can also, I imagine, define "separation of church and state" as "discriminatory exclusion of religious institutions from generally available funding programs, but evenhanded coverage of religious institutions and people in regulatory programs." That seems an odd definition to me, but who can say for sure?

My point here is that "separation of church and state" is more a slogan than a well-defined term.