By BJC Blogger Don Byrd
This year, we saw a blizzard of news items that impact religious liberty and the separation of church and state. Some headlines, like those involving legislative prayer disputes, religious monuments on government property, or government funding of religion, are familiar topics to those who closely follow this subject. Other issues, such as immigration and the laws governing the tax exemption of churches, seem to have emerged directly from the January inauguration of President Donald J. Trump.
There has been unusual upheaval — politically, administratively and culturally — in the nation’s capital. Some of these developments should be alarming to anyone who supports religious liberty and understands that the separation of church and state is essential in maintaining that ideal.
The list of 2017’s top stories includes areas of concern that came to the forefront this year, as well as news items affecting issues we watch every year. Any one of the first five could easily become the most impactful development on the list in a year’s time. At the top of my review, however, is a case decided by the U.S. Supreme Court that could significantly disrupt traditional means of keeping the institutions of church and state separate.
1. Trinity Lutheran Church of Columbia, Inc. v. Comer
In June, the U.S. Supreme Court ruled that the Constitution does not allow the state of Missouri to exclude houses of worship from a grant program designed to refurbish playgrounds. Missouri denied the application of Trinity Lutheran Church because of a long-standing provision in the state’s constitution barring taxpayer funds from being used to support churches. The Court sided with the church’s argument that the denial amounts to religious discrimination forbidden by the First Amendment. While the ruling is arguably limited to the facts of this particular case, it will likely have a significant impact on state policies regarding taxpayer funding of houses of worship.
The Trinity Lutheran Church ruling is troubling for a couple of reasons. First, it ignored church-state precedent disallowing direct monetary grants from taxpayers to houses of worship. As the Baptist Joint Committee argued in a brief filed with the Supreme Court, preventing taxpayer funding from subsidizing churches is a key religious liberty protection. That principle has “ensured that churches would not be funded through the coercive power of the state, but through the voluntary contributions of adherents, thus providing a restraint on government and a measure of religious liberty to fund or refuse to fund religious institutions.”
Second, the ruling calls into question the ability of states to enforce their own religious liberty protections barring taxpayer aid to religion, many of which date back to the 18th century. Thirty-eight other state constitutions contain no-aid provisions similar to Missouri’s, reflecting the conventional view that houses of worship hold a distinct place in our tradition of religious liberty. That special treatment both insulates them from government intrusion and prohibits taxpayer support. Discarding that traditional boundary, the Court held that enforcing the no-aid provision in this case amounts to unlawful discrimination. The U.S. Constitution, the Court ruled, requires Missouri to extend its playground-funding grants to churches, regardless of well-established state law that forbids it.
The Court’s opinion countered the state’s concerns by focusing on the fact that the funds requested by the church would only be used for improving playground safety. That emphasis suggested the decision may be limited to funding earmarked for public safety and for facilities like playgrounds that the Court seemed to view as ancillary to the religious activities of the church. As the BJC’s Holly Hollman wrote about the ruling, “[w]hile it is the first time the Court has upheld a direct government grant to a church, the Court maintains the basic constitutional principle that forbids government advancement of religion.”
It is too early to evaluate the full reach and impact of Trinity Lutheran Church, but — without question — it marks a substantial change in the way we have traditionally understood state and federal protections against government funding of religion. Already, claims for state funding of religion have cited the decision, including a challenge to FEMA’s policy of excluding houses of worship from grants to rebuild church buildings in the wake of Hurricane Harvey in Texas.
A close reading of the ruling signals the possibility that protections against taxpayer funding of religion may remain largely in place. Those protections, however, will have to be defended vigorously against the legal challenges that are sure to follow this troubling decision.
2. President Trump’s Travel Ban Raises Religious Discrimination Concerns
In January, just days after he took office, President Trump issued an Executive Order halting entry to the United States from seven Muslim-majority countries. The action also suspended the U.S. refugee program pending review, and it directed the State Department to prioritize refugee applications from refugees who are suffering religious-based persecution, but only if “the individual is a minority religion in the individual’s country of nationality.” Immediately after the Order was issued, BJC Executive Director Amanda Tyler released a statement rightly criticizing the move as a “back-door bar on Muslim refugees.”
The policy seemed to echo President Trump’s outrageous campaign proposal that the U.S. should halt all Muslims from entering the country, an idea that would certainly violate constitutional protections barring the federal government from engaging in religious discrimination. The Executive Order was halted quickly by numerous federal judges across the country as a likely violation of due process and the Establishment Clause. Courts ruling on church-state grounds found that the Order’s true purpose was to disfavor Muslims. The administration released a revised Order in March which was also challenged in court, and the U.S. Supreme Court agreed to hear two cases based on the revised Order. The BJC urged the Court to reject the policy as unconstitutional because it “selectively burdens Muslim-majority countries while exempting comparable Christian-majority countries.”
Before scheduled arguments, a new White House proclamation in September created entirely different travel restrictions, including some involving non-Muslim-majority countries. That change, coupled with the expiration of the Executive Orders, prompted the Supreme Court to cancel the hearing and instruct the lower courts to dismiss the cases. Lawsuits challenging the newest iteration of President Trump’s travel ban, however, continue to work their way through the federal court system.
This story, from campaign pledge to awkwardly implemented immigration policy, has been an especially ugly chapter in America’s commitment to religious liberty for all. That commitment is enriched through our proud tradition of religious pluralism. Any government policy that would scapegoat religion, relegate any faith to second-class status or use religion as a proxy for national security concerns, runs counter to the aims of the First Amendment and gives official voice to expressions of religious bigotry that deserve clear condemnation from all people of faith.
3. Johnson Amendment Under Fire
At press time, a key protection for houses of worship is on the brink of being dismantled in Congress (see this story). The Johnson Amendment insulates churches and other tax-exempt organizations from politicization by prohibiting them from engaging in electoral politics. For more than 60 years, that provision in the law has helped maintain the autonomy of houses of worship and the integrity of our campaign finance system by keeping candidates from being able to exploit such organizations for political purpose. It also helps congregations avoid unnecessary division along political lines.
But perhaps not for much longer. The U.S. House of Representatives passed tax legislation with language severely limiting the law’s effectiveness. (Update: The final version does not have that language)
The BJC has fought strongly against such a proposal, joining with other religious liberty advocates in recognition of the fact that opening our sanctuary doors to political campaigns will harm our congregations and offer no religious liberty benefit. The BJC was among the more than 100 religious organizations that signed a letter urging Congress to leave the Johnson Amendment intact, while more than 4,300 individual faith leaders from all 50 states expressed their opposition to changing the law through a letter available at Faith-Voices.org. If the Johnson Amendment is undone, it could have a profound impact on the relationship between our politics and our worship.
4. Supreme Court Hears Controversial Nondiscrimination Case
In June, the U.S. Supreme Court announced it would take up Masterpiece Cakeshop v. Colorado Civil Rights Commission, a closely watched case involving a bakery owner’s refusal to provide a cake for a same-sex couple’s wedding reception. Jack Phillips claims the enforcement of a Colorado law prohibiting discrimination on the basis of sexual orientation violates his religious liberty rights and his First Amendment right to freedom of expression as a cake designer.
The BJC filed a brief urging the Court to reject Phillips’ request for what would be a virtually limitless religious exemption from nondiscrimination laws in a commercial context. “The rule that the baker and his place of business wish to establish,” the brief warns, “would subject any member of the public to the possibility that they might be denied service, at any time, without warning.” (See Holly Hollman’s recent column in this magazine.)
Unfortunately, the rhetoric surrounding cases like this has become heated and polarizing. The dispute is too often mischaracterized as pitting the religious community against the LGBT community, or religious liberty against nondiscrimination. Advocates on both sides too often underestimate the complexity of the issues involved and fail to acknowledge the significance of the beliefs and interests at stake for all.
For its part, the Supreme Court may decide the case solely on the basis of the free speech issues, and leave unaddressed the religious exemption questions raised. As of press time, oral arguments had not yet been heard.
5. Increase in Bigotry and Violence Targeting Religion
How do I rank the significance of a resurgence of hate? It’s not just one story, but more of a creeping disturbance that has revealed itself in multiple headlines. Reviewing the year’s news, I cannot forget the images of torch-bearing marchers chanting anti-Semitic slogans in Charlottesville, Virginia, or the story of a congregation in Texas gunned down while gathered for worship, or the recent release of an FBI report showing hate crimes targeting American Muslims have skyrocketed. If religious freedom means anything, it must mean the right to worship according to one’s conscience, free from fear.
We must remain attentive to these stories and resolve to stand with the oppressed and victimized against religious bigotry in all its forms, and stand against acts of violence or intimidation that would leave adherents of any faith more fearful to engage in worship.
Laws and other public policies are important in protecting religious liberty and the separation of church and state, but combating hate rhetoric and violence targeting religious communities is just as necessary. The BJC continues to promote interfaith dialogue and understanding as an essential step in overcoming the harmful religious and cultural divisions that too often keep us apart.
6. Neil Gorsuch Appointed to U.S. Supreme Court
In April, Justice Neil Gorsuch was confirmed to the Supreme Court, filling a vacancy left for more than a year following the death of Justice Antonin Scalia. Asked about his religious liberty views during his confirmation hearing, Gorsuch acknowledged the difficulty of church-state cases. A review of his record as a judge for the 10th U.S. Circuit Court of Appeals revealed a mixed record on religious liberty issues, according to the BJC. At times he gave careful consideration to statutory elements and religious claims, but his total deference to claims of burden in the Hobby Lobby case and his “lack of concern about promotion of religion” were troublesome. In his brief tenure on the High Court, Gorsuch jumped immediately into a church-state case, voting with the majority in the Trinity Lutheran Church case.
7. Legislative Prayer Cases Likely Headed Back to Supreme Court
It has been a mere three years since the U.S. Supreme Court ruled in a case involving a local government’s policy for opening meetings with government-sponsored prayer. (2014’s Town of Greece v. Galloway). But there is every reason to believe the justices could take up another case (or two) now in front of them, thanks to a pair of conflicting rulings this year in federal appeals courts.
In July, the full 4th U.S. Circuit Court of Appeals ruled unconstitutional the Rowan County (North Carolina) Commission’s practice of opening meetings with prayer delivered by the commissioners themselves on a rotating basis. The court found that “legislator-led prayer … heightens the constitutional risk,” and that the facts in this case landed outside those approved by the Supreme Court in Town of Greece. In September, the entire 6th U.S. Circuit Court of Appeals reached the opposite conclusion in reviewing the Jackson County (Michigan) Commission’s similar practice, rejecting the argument that the prayer practice violates the Establishment Clause.
The Rowan County case has been appealed to the U.S. Supreme Court, which has never ruled squarely on the issue of legislator-led prayer.
8. Bladensburg Cross Ruled Unconstitutional
In October, the 4th U.S. Circuit Court of Appeals ruled that an enormous memorial cross on publicly owned land in Bladensburg, Maryland, is unconstitutional. The monument was erected in 1925, intended as a memorial to area service members who died during World War I. The appeals court rejected the argument of both the Maryland Park and Planning Commission and the lower court that the memorial is merely a generic symbol of remembrance, rather than a distinctly religious marker. “The Latin cross is the core symbol of Christianity,” the court ruled. “[I]t only holds value as a symbol of death and resurrection because of its affiliation with the crucifixion of Jesus Christ.”
Supporters of the memorial cross vow to appeal the ruling, as are proponents of a cross in Pensacola, Florida (see page 4). These cases, like those involving Ten Commandments monuments, continue to create division in communities across the country. State and local governments would do well to refrain from promoting religious symbols on land that is owned by, and meant to serve, all constituents of any faith and no faith. Thankfully, in the Bladensburg cross case, the appeals court rejected the troubling argument that crosses are acceptable government symbols because they are not religious. As the court indicated, nothing could be further from the truth.
9. Senators Cross Line in Scrutinizing Nominees’ Religion
In confirmation hearings for various Trump appointees, senators came under pressure this year for scrutinizing religious views and religious fervor. Sen. Bernie Sanders, I-Vermont, questioned and criticized an Office of Management and Budget Deputy Director nominee for his view that accepting Christ is the only path to salvation. That “line of questioning,” BJC Executive Director Amanda Tyler responded, “imposed a religious test, which is forbidden by Article VI of the Constitution.” Religious questions also were part of the conversation for other nominees. The Constitution anticipates this criticism with a stark rule that senators should remember: there is no religious test for office.
10. RFRA Argument Rejected in Keystone Pipeline Protest
The Standing Rock Sioux Tribe’s closely watched protest of the construction of the Keystone XL Pipeline earlier this year included a claim in federal court under the Religious Freedom Restoration Act (RFRA). They requested an injunction halting the project on the grounds that it would desecrate waters under their land and substantially burden their ability to exercise their religious beliefs. A federal court denied that request and held that while the management and use of government land may have an “incidental impact on religious exercise,” it does not constitute a substantial burden in this case, as RFRA requires.
Many of these stories are ongoing. Stay tuned to the BJC Blog at BJConline.org/blog for the latest on these issues and the BJC’s continued work to defend religious liberty for all people.
This article appeared in the November/December 2017 edition of Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.
