By BJC Executive Director Amanda Tyler

Difference is not always discriminatory. Tendencies to conflate those words – “difference” and “discrimination” – have troubling implications for religious liberty and religion itself. And the threat goes to the very heart of religious practice – the church.

We hear calls for “equal treatment” for churches and other houses of worship in the context of both government funding and political involvement. Baptists have long fought not for equal treatment, but for special treatment of church and religion, in recognition of the church’s distinct role and in order to protect religious liberty.

In practice, recognizing the uniqueness of houses of worship often means that churches are treated more favorably than other entities, including other nonprofit organizations. Churches are, for example, exempt from requirements to file 990 tax forms, to register with the IRS as a nonprofit organization and to comply with the Lobbying Disclosure Act. In other situations, particularly when taxpayer funds are involved, limitations on the church may be necessary to guard against interference by and entanglement with the state. Treating churches differently does not automatically mean the state is mistreating them.

But that discrimination claim is exactly the argument that is being made in Trinity Lutheran v. Comer, set for oral argument before the U.S. Supreme Court on April 19. (You can read more about the case and the BJC’s amicus curiae brief at Missouri denied Trinity Lutheran Church’s application for taxpayer support to improve its playground, citing the state constitution that prohibits direct aid to churches. The church sued and has since appealed rulings against it, arguing that Missouri is required to fund its playground improvements.

Trinity Lutheran Church’s position has far-ranging implications because 39 states have “no aid” provisions in their state constitutions that effectively prohibit direct payment to churches. Those protections, like the “no establishment” clause in the First Amendment, are grounded in the historical experience of Baptists and other religious minorities who suffered under state-supported churches. James Madison wrote that any amount of taxpayer support – even “three pence only” – was too much. To oppose government funding for houses of worship as a protection for religious liberty is an originalist position.

As the BJC’s brief in support of Missouri’s position explains, there are many good reasons to prohibit government funding of houses of worship. “No aid” principles preserve church autonomy, avoid religious conflict in the legislative and administrative process, and protect taxpayer conscience by not requiring citizens to support religion. Far from discrimination, treating churches differently shows respect for the distinct role of religion in general and houses of worship in particular.

Similar sentiments of equal treatment appear in arguments made by those who want to “destroy the Johnson Amendment,” which has become code for changing the tax laws that currently set apart charitable nonprofits and private foundations from the morass of partisan candidate campaigns. These 501(c)(3) organizations are not only tax-exempt, but they also benefit from tax-deductible donations. In exchange for that most-favored tax status, the groups agree to refrain from endorsing or opposing candidates.

This long-standing arrangement, which has been in the tax code for more than 60 years, has served the nonprofit sector and particularly houses of worship well. Pastors see the many pitfalls that would come with political endorsements, including divisions in the congregation, distractions from the core mission of being church and dilution of the Gospel. It is not surprising that when surveyed, large majorities of Americans oppose candidate endorsements in church, and the level of opposition is even higher among clergy.

Notice the underlying assumption of the proposal: that church is just another place to hear a political ad. Church is much more than that – a place of fellowship, a house of worship and a sanctuary of peace. These unique qualities are exactly what draw many people to church. Removing the protections in the law could very well lead politicians to pressure pastors to use their pulpits for campaign speech, alienating churchgoers in the short term and, in the long term, fundamentally changing the role of church in our society.

Jesus’ admonition to render unto God what is God’s and to Caesar what is Caesar’s gives us a two-kingdom mentality as a framework for religious freedom. Arguments for Trinity Lutheran Church and for encouraging churches to electioneer mix the kingdoms in troubling ways. The former would make Caesar support God’s house and the latter could lead pastors to render to Caesar in God’s house. Neither approach bodes well for religion or religious liberty.

From the March/April 2017 edition of Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.