Written by Don Byrd
The headlines of 2018 signaled a marked shift away from the careful balance of concerns at the heart of America’s religious liberty heritage. In both court rulings and government policy, Free Exercise arguments continue to dislodge Establishment Clause principles to create an uneven and uneasy relationship between the Constitution’s twin pillars of religious liberty. This last year has also brought into clear focus the life-and-death stakes that call on us to strengthen our connections to each other across all faiths and stand united against all forms of hatred.
While end-of-year lists are usually occasions to remember and put behind us, most of the stories below involve matters that will continue to require attention, advocacy, and action for those of us who care about religious liberty for all. At the top of the 2018 list, because it has persisted throughout the year and remains a pressing concern, is the zombie idea that Congress won’t let die: the proposal to politicize our congregations and religious institutions by undoing the law that governs political activity by tax-exempt organizations.
- Johnson Amendment Galvanizes Grassroots Supporters, Remains Political Target – One year ago, I wrote that the Johnson Amendment, which protects tax-exempt houses of worship from politicization, “is on the brink of being dismantled in Congress.” The House version of the tax bill being considered at that time included language that would have ended the requirement that tax exempt organizations refrain from engaging in electoral politics. Fortunately, a groundswell of grassroots opposition from religious and other nonprofit advocates was able to celebrate after the bill emerged from conference in December 2017 with the Johnson Amendment intact. Unfortunately, that victory did not prove to be the end of the story, as those in Congress who sought to open floodgates of dark money and politics onto our congregations have not stopped searching for a legislative vehicle to reach that goal.
After the House Appropriations Committee in February approved a funding bill that included yet another attempt to dismantle the Johnson Amendment, advocates went to work again. 145 organizations including the BJC sent a letter to House and Senate leaders, and on March 6, grassroots supporters across the country contacted their Senators to urge the removal of that language from the final bill. Two weeks later, the omnibus spending bill was released without the troublesome provision weakening the Johnson Amendment. But by June, the idea was once again in the news, as Vice President Mike Pence advocated for the repeal of the Johnson Amendment in a speech at the annual Southern Baptist Convention meeting in Dallas.
On the surface, allowing churches to engage in electoral politics may seem like an expansion of religious liberty. That is why 2018 has been a year of constant education and vigilance on this issue, to let members of the clergy, lay leaders, and church-goers, along with their representatives in Washington, know why the Johnson Amendment is essential for maintaining robust religious liberty. As BJC Executive Director Amanda Tyler explained, undermining it “would expose houses of worship and all 501(c)(3) organizations to pressure from candidates seeking endorsements and would fundamentally change their character.”
Most importantly, this year saw enormous mobilization of the popular support for the Johnson Amendment, and not just in the community of churches and religious organizations. The BJC’s Tyler teamed up with Tim Delaney, CEO of the National Council of Nonprofits, to discuss how people of faith and the broader nonprofit community are working together to protect against politicization of our safest spaces.
What’s Next? Now, at the close of the year, another threat has emerged from Congress. Section 507 of the proposed “Retirement, Savings, and Other Tax Relief Act of 2018” would essentially gut the protections of the Johnson Amendment. And once again advocates from the grassroots up will be called upon to remind legislators why a majority of Americans, by a large margin, want the Johnson Amendment to remain in place.
If they refuse to listen, Congress threatens to significantly alter both our politics and our houses of worship.
- Pittsburgh Synagogue Attack – In October, America suffered the deadliest anti-Semitic attack in our nation’s history when a gunman entered the the Tree of Life Synagogue in Pittsburgh, Pennsylvania, and took the lives of 11 worshippers, injuring six others. The assault was the work of one individual, but feels also like the expression of an intensifying voice of overt hate directed at religious and ethnic minorities in America. As BJC Executive Director Amanda Tyler wrote in a joint op-ed with Rabbi Burton Visotzky and Sayyid Syeed, “We can’t disentangle anti-Semitism from anti-Muslim sentiment from anti-immigrant sentiment from white supremacy, because these forms of hate all drink from the same well.” The Tree of Life shooting was an anti-Semitic attack, directed specifically at the Jewish community. But any attack on worshippers is an assault too on religious liberty generally. Central to our religious freedom guarantees is the right to worship free from fear, and certainly free of the threat of violence. Unfortunately this incident was not our only indication that hate crimes based on religion and anti-Semitic attacks generally are on the rise.
As Tyler, Visotzky, and Syeed wrote, “Together …we commit ourselves to educate our communities and build stronger interfaith bonds to better uphold our American ideals of religious freedom for all people who seek a country in which they are safe and free.”
- Supreme Court Upholds Travel Ban – In June, the U.S. Supreme Court upheld President Trump’s “Travel Ban” proclamation, the administration’s third attempt to craft a policy limiting immigration from certain majority-Muslim countries. The plaintiffs pointed to, among other things, comments made by then-candidate Trump announcing his proposal for a “complete shutdown of Muslims entering the United States,” to support the argument that the policy unlawfully targeted Muslims. Chief Justice John Roberts authored the 5-4 opinion, which rejected those religious discrimination arguments and emphasized instead that the President is entitled to broad deference in issuing national security findings and policy.
In dissent, Justice Sonia Sotomayor said the administration’s policy merely “masquerades behind a facade of national security concerns.” The court’s majority, she wrote, “failed to safeguard” the principle of religious neutrality in government. BJC General Counsel Holly Hollman joined other religious liberty scholars in an amicus brief that urged the court to strike down the policy as impermissibly motivated by hostility toward Muslims. The BJC also condemned the court’s ruling as failing to “uphold its duty to uphold our First Amendment principles of religious liberty.”
- FEMA Funding Disputes Signal Growing Impact of Trinity Lutheran Church Ruling – Under historic principles of church-state separation, government is precluded from directly funding churches. But in the aftermath of devastating hurricanes in Texas and Florida in 2017, churches in both states challenged FEMA policy at the time which excluded houses of worship from grant eligibility. They relied on the Supreme Court’s holding in Trinity Lutheran Church that a Missouri grant program for playground refurbishment could not exclude religious entities despite that Establishment Clause concern. Many religious liberty advocates including the BJC argue against such an expansive reading of the playground decision. Rebuilding sanctuaries and other church grounds, they maintain, amounts to a direct subsidy of religious facilities in violation of the First Amendment. Early this year, however, FEMA changed its policy to make houses of worship and other religious institutions eligible for taxpayer aid to rebuild following a natural disaster. And Congress followed suit with a provision in the budget codifying that policy into law.
Questions about whether the government is allowed to fund houses of worship for rebuilding or preservation, and whether government is even required to in some circumstances, remain. The impact of the Trinity Lutheran Church ruling on disputes surrounding government funding and support for religion and religious entities seems to be expanding. Just this month, the New Mexico Supreme Court reversed course on a ruling invalidating a textbook loan program that benefits religious schools. Citing Trinity Lutheran Church, the court held that Establishment Clause concerns could not justify their previous opinion. This promises to be an ongoing area to watch in 2019.
- Brett Kavanaugh Joins U.S. Supreme Court, Replacing Anthony Kennedy – A new justice on the U.S. Supreme Court will always register as an important development for religious liberty. The high court serves as the final protector of our most precious rights and freedoms, and establishes precedent for all courts considering constitutional questions. Former D.C. Court of Appeals Judge Brett Kavanaugh’s appointment feels especially important in that he replaces long-serving Justice Anthony Kennedy, who was generally perceived to be the swing vote for many close decisions. Evaluating Kavanaugh’s record on the bench, BJC General Counsel Holly Hollman warned that “[w]hether Kavanaugh appreciates the Establishment Clause as a limit on government involvement with religion and an essential protection for individual religious liberty is questionable.”
- Trump Administration Issues New Faith-Based Directives– 2018 saw Trump Administration agencies make several troublesome moves in regards to religious liberty. The actions this year build on a 2017 Executive Order directing the Attorney General to issue guidance for agencies under the administration’s interpretation of current religious liberty law, which, as the BJC’s Holly Hollman said, has “a decided tilt toward concerns of free exercise, giving short shrift to the government’s duty to avoid ‘no establishment’ concerns.” Here is a brief rundown of these developments:
In May, the President issued an Executive Order which changed the structure of the White House Office of Faith-Based and Neighborhood Partnerships and removed religious liberty protections for beneficiaries of government services provided by faith-based organizations. In July, Attorney General Jeff Sessions announced the creation of a new Religious Liberty Task Force within the Justice Department; its exact purpose and makeup remains unclear, but as BJC Executive Director Amanda Tyler wrote in response, it appears to be “one-sided,” addressing important free exercise principles while leaving out “concern for government promotion of religion.” In October, Sessions directed all agencies to review their faith-based funding policies and practices in light of the Supreme Court’s ruling in Trinity Lutheran Church, while the Labor Department announced it would issue new regulations expanding exemptions from employment laws for religious organizations receiving federal funds.
Taken together the administration continues to move in the direction of greater access to federal funds for religious organizations with less accountability or requirements regarding the use of taxpayer money. This uneven approach upsets the important balance between free exercise and establishment clause concerns that is essential to maintaining robust religious liberty.
- Supreme Court Agrees to Hear Memorial Cross Case– The next Establishment Clause case the U.S. Supreme Court will hear is a challenge to a large cross located on public land in Bladensburg, Maryland, which the 4th Circuit ruled is an unlawful display. Among the troubling claims raised by this case is an argument that rather than being necessarily Christian symbols, crosses also serve as generic memorializing expressions.
Regardless of the outcome, the decision promises to be consequential for how courts evaluate the constitutionality of government-hosted religious displays. It will also be the first occasion we have to hear how new Supreme Court Justice Brett Kavanaugh handles Establishment Clause questions on the high court.
- Supreme Court Ruling in Masterpiece Cakeshop Leaves Central Question Unanswered – A year ago, I would have confidently predicted that the Masterpiece Cakeshop ruling slated for this year would surely be the top religious liberty story of 2018. After all, the core issue in that case — whether and the extent to which business owners who object to participating in same-sex marriage ceremonies are entitled to accommodations under the First Amendment from nondiscrimination laws — has been a defining conflict during the last few years. The issue in Masterpiece Cakeshop was whether Jack Phillips, the owner of a custom cake design store, had to provide a custom cake for a same-sex couple’s wedding celebration to comply with Colorado law prohibiting businesses from denying service on the basis of sexual orientation.
Instead of resolving that issue, however, the Supreme Court focused on the Colorado Civil Rights Commission’s administration of the complaint against Phillips. Because members of the Commission, the Court found, exhibited hostility toward Phillips’ faith while considering his request for accommodation, their decision amounted to religious discrimination and was invalid. Because of the narrow basis for the decision, the fundamental question surrounding the relationship between nondiscrimination laws and free exercise accommodation remained unanswered. In fact the majority opinion went out of its way to explain that another case posing the same constitutional question, but without the religious hostility highlighted here, could easily come out the other way. The BJC issued a statement following the Masterpiece Cakeshop decision you can read here.
What’s next? A similar case (Arlene’s Flowers) involving a florist who refused to provide flowers for a same-sex wedding ceremony in Washington State was sent back to the Washington State Supreme Court to reconsider in light of the Masterpiece Cakeshop decision.
- Multiple States Pass “In God We Trust” Legislation – This year lawmakers in Florida, Tennessee, Alabama, Louisiana, and Arizona enacted legislation requiring schools to prominently post the motto “In God We Trust.” Several other states considered such legislation or have a proposal lined up for 2019. Could it be a coincidence? Likely not. In fact, these new laws align with the first phase of an organized campaign to increase religious references in government spaces. “Project Blitz“ is a legislative playbook of model bills that begins with less controversial proposals like “In God We Trust” postings and moves to more controversial ideas. The story here is not just the mandated posting of “In God We Trust” but also the coordinated national effort to introduce proposals to state legislatures related to religion.
- Supreme Court Declines Legislative Prayer Cases – Proving yet again that I am a lousy prognosticator, the U.S. Supreme Court in June of this year declined to take up a pair of legislative prayer cases that appeared to be likely candidates for their review. The 2017 rulings by federal appeals courts seemed to be in conflict — one upholding a legislative prayer practice in Mississippi and one striking down a similar policy as unconstitutional. Both cases involved prayers led by government officials, rather than invited clergy, but the Supreme Court declined to resolve that issue, leaving lower courts to parse the appeals courts opinions for subtle differences, and making more litigation in this area likely to continue.
The list above focuses exclusively on domestic religious liberty headlines, and not the myriad of serious religious liberty challenges faced particularly by persecuted religious minorities around the world. I am mindful of the words of Rabbi David Saperstein, former U.S. Ambassador-at-Large for International Religious Freedom, who in a recent discussion about the state of religious freedom heading into 2019 said, “I pray for the day when, on the global scene, the most challenging religious issue is whether or not corporations have religious freedom rights.” His point is well taken. Most of the world would be so lucky as to have the religious liberty concerns of the U.S.
At the same time, the headlines above are not trifles, and we advocate so passionately over them for a reason. When it comes to protecting fundamental freedoms, the details are important. The right balance is essential for maintaining and strengthening our values of religious liberty and freedom of conscience, ideals which are central to our reason for being as a nation. Continuing to tilt that balance in a way that encourages government’s support of religion will further undermine the religious liberty of all.