Robert J. Harman: The Current State of Church and State

Today's post is by Robert J. Harman. Rev. Harman is a mission executive retired from the General Board of Global Ministries.

Many in the churches have been watching the grueling efforts in the US Congress to reach a compromise on a second installment of a stimulus bill so very much needed by segments of the population still reeling from the impact of COVID-19. Those who benefitted from the large amounts of funding available to churches in the rollout of the CARES Act Payroll Protection Program may have a special interest in whether a similar provision will be available in any new funding package.

Analysts found that churches benefitted from over $5 billion in the first installment, of which participating United Methodists took in $500 million, much more than the quadrennial budget of the entire denomination. That bonanza occurred without any evidence of a formal consideration of the appropriateness of the legislation ignoring historic standards for honoring the doctrine of separation of church and state. (See my previous article on this topic here.)

In light of those historic standards, is it reasonable to assume that United Methodist church leaders might yet be nudged into a new stance discouraging the acceptance of new government funds? Might United Methodists come out in support of the constitutional separation that assures citizen taxpayers that government funds will not be used to support religion? I hope so, because the silence and accommodation of the churches is having a devastating effect upon the performance of the Supreme Court on church and state cases.

In a recent opinion piece in the New York Times, legal columnist Linda Greenhouse ponders the direction of the conservative majority on the Supreme Court, even before its hold on the court was cemented by the addition of Justice Amy Coney Barrett.

Greenhouse suggests the court is catering to religious liberty voices within a growing constituency, which she identifies as grievance conservatives. Their influence upon the court has risen by claiming to be an overlooked, silent majority that has been treated unfairly in a system that is rigged against them. When religious liberty cases cite the cause of their grievances as “overreach of liberal government policies,” a partisan political agenda is advanced.

Their legal philosophy argues that the historic doctrine of separation of church and state actually discriminates against the right of religious-based organizations to participate equally in the benefits of government resources and programs, and its strict observance denies recognition of legal protection to individual religionists in practicing their faith.

At the outset, the founders saw the protection of free exercise of religion as a guarantee of freedom from the oppressive state-controlled churches and religious life from which so many citizens had fled to settle in America. Government would not interfere with individual or communal acts of devotion associated with the doctrines or traditions of faith communities. Further, because they were products of the Enlightenment, the founders believed their experiment in democratic rule required designing a secular state. Thus, Thomas Jefferson could declare in a letter to a Baptist association that his first amendment non-establishment clause would be a “wall of separation between church and state.”

Recent religious liberty decisions of the high court have been fraught with unsavory implications that the founders sought to avoid by enshrining the non-establishment clause. In her NYT opinion piece, Greenhouse illustrates how several cases infringing upon the separation principle produced collateral damage to other well-established rights.

In a case challenging a state subsidy for private-school tuition, the court ruled that funding must include parochial schools in the program. It ruled that religious organizations may exclude a substantial category of employees from the protections of federal civil rights laws under a “ministerial exception” that goes well beyond members of the ministry. It found that employers with religious or even vague “moral” objections to contraception can opt out of the federal requirement to include birth control in their employee health plan coverage. These cases found their precedence in more publicized Supreme Court cases such as Hobby Lobby, Masterpiece Cakeshop, and Trinity Lutheran Church in Columbia, Missouri—all cases in which persons / organizations with religious claims were all granted anti-discrimination protections.

The court’s decisions are celebrated by religious liberty activists but are questioned as discriminatory by advocates of church-state separation, organized labor, women’s health, public education, civil rights, and LGBTQ rights, who are all concerned that religious exemptions will deprive their constituents of constitutional rights and equal access to vital services.

Only a firm endorsement of the separation doctrine will place all matters that have potential for endorsement of religion beyond the purview of the court. Jefferson’s promise should offer a foundational legal principle for churches today, as conservative advocates focusing their grievance arguments on alleged violations of the free exercise clause find sympathetic jurists willing to define what is and what is not authentic religious belief and practice. Can judges accurately read the heart of a plaintive to ascertain the true foundation of faith s/he represents in a legal claim? Or can a judicial body arrive at an appropriate remedy for alleged social damages in a case-by-case review of alleged infractions of individuals’ freedom of religion?

Churches should be found among the more active court watchers and legal advocates with standing in cases that exploit religious liberty for individual / corporate advantage or political gain. While grievance conservatives can find safe harbor in well-financed conservative legal societies/lobbies like the Becket Fund for Religious Liberty, they must no longer take comfort in silence from ecumenical and mainline churches. The free exercise and non-establishment clauses deserve the defense of communities of faith that understand these principles to be part and parcel of the common good and defend justice for all.

Unfortunately, the current silence of the churches may have been bought and paid for by the billions of dollars they received through participation in the PPP funding.

The conservative legal argument that established the victories for the religious right cited above prevailed in the legislation enabling churches to apply for loans/grants during the hardship experienced in the initial phase of the COVID pandemic. If receipt of these funds leads to ecumenical and mainline silence on issues of separation of church and state, conservatives will have won a double victory.

Churches must re-assert the separation principle that provision of taxpayer funds for direct support of those in preparation for, or engaged in, the teaching and preaching of religious doctrine is an arbitrary violation of the non-establishment clause.

This complacency of churches is especially egregious because it is happening at a critical moment in history. The rise in the United States of nationalist behavior behind the America First political theme is being hailed by autocratic leaders worldwide and undermining trust in democracy at home. Must we recall the tragic history of how populism begets authoritarian rule when conspiring with representatives of state-sanctioned religion?

The religious right’s successful embrace of religious liberty causes and its growing favoritism among conservatives in the judiciary must be countered before it assumes by default the mantle of establishment. It is late, but hopefully not too late for an urgent correction.