Sunday, October 5, 2008

The bailout afoul with the free exercise clause?

A few days ago I saw an article by Ruth Moon at that raises an interesting question about the recently enacted financial bailout legislation. Based on a Howard Friedman blog entry, Moon wonders about the government buying back failed church mortgages. Would the government then be entangled with religion? Both Friedman and Moon link an August article in The Deal reporting that "a surprising number of churches are behind in mortgage payments." So the possibility of the government owning church property as a result of the bailout appears to be more than theoretical at this point.

Moon approaches the possible problems created by this scenario from the standpoint of the Establishment Clause and several law professors agree that the legislation is "unlikely" to create problems in connection to that part of the First Amendment. But Moon does not mention the Free Exercise Clause which seems to be more problematic to this legal layperson.

The First Amendment says in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." Suppose a church that has defaulted on a loan is forced to move out of its building. If the government holds that mortgage then isn't this a law that prohibits the free exercise of religion for that congregation?

Sure, some may say that congregations that fail to pay their debts deserve to get booted from their building, but that's not the point. There is no qualifier on the applicable language of the First Amendment: "Congress shall make no law" that prohibits the "free exercise" of religion. It is one thing for a bank to foreclose on a church and evict the congregation from its place of worship but it is another thing for the government to do so thanks to the Bill of Rights.

At least that's the way it looks on the surface to me. What do you think?

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