Written by Don Byrd
In 2007, a federal court in Utah concluded, remarkably, that memorial crosses erected by the state highway patrol association on taxpayer land are not a violation of the separation of church and state because, as the court viewed it, a cross is not necessarily so religious. A cross “may act as a secular as well as a religious symbol,” the judge wrote, concluding that the crosses in that case “communicate a secular message.”
The 10th Circuit reversed that opinion, but the disturbing view that an inherently religious symbol like a cross may have somehow evolved into a non-religious symbol and really communicates a secular message has only gained traction since.
In 2009, in a Supreme Court argument over the constitutionality of a large cross marking a war memorial on government land, the late justice Antonin Scalia created great controversy by echoing this suggestion that a cross is a generic symbol of memorial, rather than a specifically religious symbol of the Christian faith. He called “outrageous” the idea that “the only war dead that that cross honors are the Christian war dead.” But as the attorney in that case pointed out to Scalia, you don’t find crosses in Jewish cemeteries, and for a reason.
In fact, what is outrageous is the way advocates and judges increasingly justify the government’s co-opting of sectarian expressions of faith by draining them of their religious significance. It should alarm every person of faith.
This trend of reasoning is not limited to memorial crosses. A similar logic often defends the practice of prayer to open government meetings and legislative sessions. These invocations are not too specifically religious, the argument goes, because they merely “memorialize” the importance of the event, and “solemnize” the moment. “[T]hese prayers vary in their degree of religiosity,” Justice Kennedy wrote in upholding the legislative prayer practice in the 2014 case, Town of Greece v. Galloway. (my emphasis)
Think about that for a minute. For many people of faith, prayer is an integral expression of religious exercise. Yet, here is a justice of the United States Supreme Court providing assurance that certain prayers, even those acknowledging Jesus Christ as Lord and Savior, may be shrugged off as, at best, of minimal religious consequence, generally harmless, benign, generic. Such invocations merely “lend gravity to the occasion” and put government officials in “a solemn and deliberative frame of mind.”
This embrace of civic religion waters down the significance of our religious symbols, and betrays the essential connection between our outward expressions of faith and the inward, spiritual grace at their source.
Reflecting on Trinity Lutheran Church’s arguments last week and the discussion that has followed, I worry that our houses of worship increasingly face a similar denial of their essential religious character.
That case involves the state of Missouri’s denial of a grant to the church to pay for refurbishing its playground with the state’s recycled materials because state law prohibits taxpayer aid to religion. The attorney representing the church, David Cortman, assured the court that there are no significant church-state concerns in allowing this grant because activities that occur on the church playground aren’t so religious. “[E]ven though the motivation behind operating this preschool is a religious motivation, doesn’t mean that every single activity that occurs there happens to be religious,” Cortman remarked during oral arguments.
Churches across the country, whose preschool ministries are preeminent expressions of religious outreach, and for whom the activities of a church are sacred through and through, might be surprised to find their ministry defined as secular. Under the law, we acknowledge in various ways that a house of worship is an inherently religious entity, deserving of special treatment. The Baptist Joint Committee’s Amanda Tyler enumerated in an important recent column the many benefits afforded churches as a result of this status. Holly Hollman of the BJC likewise argues passionately, in an op-ed for Religion News Service, that “[i]t shouldn’t be taken at face value that any part of the church, such as the playground in this case, has nothing to do with religion.”
I will only add, as plainly as I know how: church activities are religious activities.
Who would want courts to have a say in whether a church’s ministries are religious, or sufficiently religious, to qualify for special treatment? Why would we want the benefit of government aid to depend on such a determination?
And yet, that may be what the Supreme Court is poised to determine, if they refuse to allow the state of Missouri to enforce state law barring taxpayer aid to churches in this circumstance, based on their belief that playground activities just don’t sound very religious to them.
Ruling in favor of Trinity Lutheran Church may result in more government grants directly to churches to improve and upgrade their facilities. But such favor comes at a cost, not the least of which is an increasing denial of the religious character of church activities in pursuit of taxpayer aid. Inviting the government to regard as secular the activities of a house of worship undermines its special status. It also may unwittingly encourage more government meddling, oversight and regulation into the one sacred space our tradition of religious liberty most strongly protects.
Historically, the protection of religious liberty has been interpreted to forbid direct taxpayer aid to such a quintessential religious entity as a house of worship. This trend toward secularizing our religious spaces, symbols, and expressions to integrate them with the interests of government could reach a new and disturbing mandate, depending on the outcome in Trinity Lutheran. No longer prohibited from funding churches, state grants may be *required* to fund them. That dramatic shift in the law would diminish everyone’s religious liberty, and it would be a mistake for both the church and the state.