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Nelson Tebbe, Micah Schwartzman and Richard Schragger: The quiet demise of state-church separation

This article appeared in The New York Times on June 8 and is reprinted with permission.

By Nelson Tebbe,
Micah Schwartzman
and Richard Schragger

The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This has long been thought to prohibit direct government support for religion. The contours of that idea have been contested, and they have contracted over time. But the commitment to some form of separation of church and state has endured.

Yet in response to the coronavirus pandemic, Congress has approved a huge payout to small businesses and nonprofits that allows funding for clergy salaries — a direct payment of tax dollars for a core religious use that would have been unthinkable in previous eras.

Thousands of churches applied for help under the Paycheck Protection Program, and many have had their funding approved. We are witnessing an important moment in the nation’s constitutional history: the quiet demise of the already ailing separation of church and state.

In 1785, James Madison, the chief architect of the Establishment Clause, argued against a Virginia bill that would have paid for clergy salaries with tax dollars, even though it would have supported a relatively wide range of denominations. Madison’s essay making that case was once widely thought to provide the best historical evidence for the meaning of the clause. He believed it was a violation of religious freedom to “force a citizen to contribute three pence only of his property” to pay for the salaries of clergy, a mandate he saw as an “establishment” of religion by the government. Thomas Jefferson made much the same point in his religious freedom bill, which became the law in Virginia.

One hundred and sixty-two years later, in 1947, the Supreme Court evoked Madison’s essay in a seminal Establishment Clause decision, asserting that the clause “means at least this:” That “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”

In that decision, the court in fact upheld a New Jersey program that supported the transportation of students to all schools, including religious schools. But it emphasized that transportation services, like ordinary police and fire protection, were “so separate and so indisputably marked off from the religious function.”

And that was the point: The New Jersey program, unlike the Paycheck Protection Program that helps congregations pay their clergy members, did not directly support a religious mission. It merely provided students attending public and religious schools equal access to affordable transportation.

The Supreme Court reiterated in 2000 that the Establishment Clause prohibits direct funding of religious activities. “Actual diversion” of public support to religious uses “is constitutionally impermissible,” Justice Sandra Day O’Connor wrote. And concerns are heightened when government aid takes the form of cash payments made directly to religious organizations, she emphasized.

Congress’s Paycheck Protection Program flouts this rule. As applied, the program explicitly extends to nonprofits, including churches — with no restrictions on payment of clergy salaries. Although the aid initially takes the form of a loan, it is largely forgivable if the recipient maintains its payroll size for a sufficient period.

The Small Business Administration waived its normal rules prohibiting aid for religious activities. Remarkably, it relied implicitly but unmistakably on a reading of the First Amendment that not only permits cash aid to houses of worship for core religious activities, but requires the government to pay for those activities.

The Paycheck Protection Program violates the constitutional rule requiring the separation of church and state, and it does so on an enormous scale. Nine thousand Catholic parishes have received loans so far. The Archdiocese of Louisville, for example, was awarded more than $20 million across 84 entities, for an average of $238,000 each. One church, St. James parish and school in Elizabethtown, Ky., received loans totaling $439,800.

Moreover, a national survey found that 40 percent of all Protestant churches had applied for government funds and that 59 percent of those applications were approved. The Jewish Federations of North America reported in late April that 575 organizations had received loans, with a median of $250,000 each and a total of $312 million. Recipients included more than 200 synagogues. With 445 entities awaiting word on their applications, the J.F.N.A. estimated that Jewish nonprofits could receive $500 million from the program.

Of course, the rule laid down by Justice O’Connor 20 years ago is vulnerable to revision by the current court, with its conservative majority. At least five justices have signed opinions indicating a willingness to allow public aid that is administered neutrally with respect to religion and that is secular in content. The court is soon expected to decide a funding case in which it has an opportunity to go further and require religious schools to be included in a school choice program. Almost certainly, the court led by Chief Justice John Roberts will continue its campaign to revolutionize First Amendment law so that it favors religious actors.

What is remarkable is not that the federal government is spending tax dollars for religious uses in a way not seen before, or even that it is doing so on a vast scale. It’s how little pushback this program has elicited. With respect to public funding of religion, the separation of church and state has all but disappeared — without a bang or even a whimper.

More than likely, this tacit acceptance reflects compassion for the small businesses and nonprofits struggling during the pandemic. That concern is entirely understandable, especially given that houses of worship, like many other organizations, have been burdened by state public health restrictions. But as Justice David Souter once observed, “constitutional lines have to be drawn, and on one side of every one of them is an otherwise sympathetic case that provokes impatience with the Constitution and with the line.”

Constitutional interpretations forged during times of crisis tend to persist after the danger has eased. That is especially true in this context, where the separation of church and state had already been under sustained attack, making the foundational doctrine all the more vulnerable.

In 2002, the Supreme Court ruled that states could indirectly fund religious schools through a voucher program. More recently, the court held that a state cannot exclude religious schools from a grant program for school playgrounds, even when the schools are owned and operated by churches.

Now the core constitutional rule against using taxpayer dollars to pay clergy is slipping away in face of the coronavirus crisis. That should give us pause. The obliteration by Congress and President Trump of a basic principle of separation is a significant development in American constitutional culture.

We should take a moment to reflect on what has happened and to reckon with a new constitutional structure in which the government supports the central missions of religious organizations on a large scale. The entanglement of church and state will bring predictable conflicts: efforts by religious groups to control government and by the government to control religious groups. The risk of government favoritism for some religions over others, and for religion over nonreligion, will be heightened.

In other words, the new church-state paradigm will raise the very dangers that Madison and Jefferson warned of when they articulated principles of religious freedom for our country.

Nelson Tebbe is a professor at Cornell Law School. Micah Schwartzman and Richard Schragger are professors at the University of Virginia School of Law.