Disrupted Symmetry

Steven K. Green November/December 2023
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Assessing the hazards of the Supreme Court’s “one-sided” separation of church and state.

Illustration by Robert Hunt

In 2017 the United States Supreme Court handed down a decision involving an obscure issue about the relationship between church and state. The Missouri Department of Natural Resources provided grants to public and nonprofit schools and day-care centers to purchase recycled materials for resurfacing their playgrounds. A Lutheran church that operated a preschool and day-care center on its property applied for a reimbursement grant under the state program. As a nonprofit the church otherwise qualified for the grant, but the department rejected its application based on a state constitutional provision that provides: “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination.” The purpose of the prohibition, the department insisted, was to maintain the separation of church and state. The church charged that the state discriminated against it based on its status as a religious entity and sued in federal court. Despite the seemingly trivial facts at stake, the case raised the central question of whether church-state separation prohibited the government from providing financial assistance to a house of worship to renovate its facilities.

By a lopsided seven-to-two vote, a Court majority in Trinity Lutheran Church v. Comer held that the state could not exclude the church because of its religious identity, even though it would involve a direct grant to a house of worship. The majority opinion by Chief Justice John Roberts brushed aside the non-establishment of religion concerns, disingenuously declaring that all parties agreed that the establishment clause did not bar the grant, and then characterizing Missouri’s “no religious aid” constitutional provision as a mere “policy preference” that failed to qualify as a compelling state interest. To deny a public benefit to a religious entity—even a financial benefit—amounted to government discrimination against religion and violated the free exercise clause, the majority ruled.

The holding elicited an impassioned dissent from Justice Sonia Sotomayor that excoriated the majority for abandoning the principle of church-state separation. The majority’s “reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” Justice Sotomayor wrote. “If . . . separation means anything, it means that the government cannot, or at least need not, tax its citizens and turn that money over to houses of worship.” According to Justice Sotomayor, the Court was leading the nation to “a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

Three years later the High Court considered another application of church-state separation. Lay teachers at two Los Angeles Catholic elementary schools had sued their schools for employment discrimination, alleging that they had been wrongfully dismissed on account of their age and a medical disability. Even though federal nondiscrimination laws otherwise applied to the claims, the Catholic schools asked the courts to dismiss the suits on grounds the teachers performed ministerial duties. Eight years earlier the justices had held that religious entities were protected from lawsuits brought by clergy raising wrongful dismissal claims, regardless of the allegations (the “ministerial exception”). That case had also involved a teacher in a parochial school (Lutheran) who had raised a disability claim, but she had held the title of a “minister” and had significant religious training and duties. None of those factors applied to the two teachers in the Catholic schools. Nonetheless, the Court majority extended the ministerial exception, citing the need to protect the “independence of religious institutions in matters of ‘faith and doctrine,’ ’’ including the ability to define ministerial duties and the “authority to select, supervise, and, if necessary, remove a minister without interference by secular authorities.” Although the Court did not use the term “church-state separation,” its decision relied extensively on a line of “church autonomy” cases in which courts had applied the concept of separationism to protect the internal operations of religious entities.

Slow Slide toward ‘Revolution’

One of the cornerstones of the nation’s institutional structure and constitutional jurisprudence is the principle of separation of church and state. The idea predates the nation’s founding, and the Supreme Court first recognized it as a legal theorem in 1879. In 1947 the Court affirmed that church-state separation would be the touchstone for interpreting the First Amendment’s two religion clauses: the free exercise and non-establishment clauses. For the next 50 years, separationism was the guiding constitutional doctrine, meaning that government could not fund, support, or endorse inherently religious activities. Separationism also meant that the government should not interfere in the internal affairs of religious entities—that, in the Court’s words, it should not become “excessively entangled” with religion. But separationism never meant that churches and other religious entities were excluded from benefiting from neutral public welfare programs, such as police and fire protection; neither did it mean that religious entities were exempted from complying with neutral health and safety laws. For 50 years, separationism ensured a degree of symmetry between the two religion clauses.

Separation of church and state has also received widespread popular support. Church-state separation is likely one of the few constitutional concepts that the average layperson recognizes (along with separation of powers and checks and balances). In fact, according to a Pew Research Center survey conducted last year, three-quarters of Americans believe that religion and government policies should be kept separate. To be sure, separation of church and state is a captious concept—people can agree on the idea in principle while disagreeing on its applications (for example, is a church group’s use of a public school building for weekend religious services a violation of church-state separation?). But one thing is certain: the notion of church-state separation, at least as a guiding principle, has strong historical bona fides along with broad popular support.

During the past 25 years, however, political and religious conservatives have increasingly attacked the concept. Criticism has always existed—opponents have long claimed that separationism is anti-religious and promotes a regime of secularism. But surveys have continually demonstrated that the United States has the highest degree of religious affiliation of any industrialized democracy. Yet for the past quarter century the attack on separationism has only intensified, now coming from members of the judiciary.

Thus, observers were not surprised by the outcome in Trinity Lutheran Church. For years the Supreme Court had been moving away from rigorously enforcing the non-establishment principle, allowing for forms of auxiliary financial assistance to religious schools, tax credits and tuition vouchers for religious education, and official acknowledgments of religion through legislative prayers and displays of religious symbols on government property. Still, the underlying issue in Trinity Lutheran Church involved a line that had not previously been crossed: a state providing direct financial assistance to a church. Not only was that ruling significant; the majority opinion declined to reconcile its holding with the principle of church-state separation. The majority’s brush-aside of a principle it had been so instrumental in crafting 70 years earlier confounded not only Justice Sotomayor but also legal scholars and historians. Constitutional scholar Erwin Chemerinsky wrote that the holding was “unprecedented in American history: Never before had the Supreme Court held that the government is required to provide assistance to religious institutions. . . . The noble and essential idea of a wall separating church and state is left in disarray, if not shambles.”

Yet Trinity Lutheran was merely the beginning of an accelerated trend. In 2019 the Court upheld the constitutionality of a 32-foot cross on a public highway. Even though the American Legion had erected the cross in 1925 to honor fallen soldiers from World War I, it was subsequently acquired and maintained by a government planning commission. Still, by a seven-to-two vote, the Court found that the government-owned cross did not violate the establishment clause, with the justices applying a “historical practices and understanding” test instead of asking whether the government’s action endorsed Christianity. The following year the Court upheld applying a tax credit for religious school tuition. Chief Justice Roberts dismissed the state’s goal of “separating church and state ‘more fiercely’ than under the federal Constitution” as an “ill-defined interest,” and then added that “we do not see how the no-aid [to religion principle] promotes religious freedom.” And in his concurrence, Justice Clarence Thomas charged that church-state separation represents a “distorted view of the establishment clause,” declaring that “this Court’s adoption of a separationist interpretation has itself sometimes bordered on religious hostility.”

Finally, in 2022 the Court decided two church-state cases that may represent the capstone of this trend. In Kennedy v. Bremerton School District a majority held that a public school district could not prohibit a high school football coach from praying on the field at the conclusion of a game, despite the presence of team members and other students. The Court held the school district had violated the coach’s free speech and free exercise rights. Missing from the majority opinion was any consideration of the considerable body of case law governing religious expression in public schools. Justice Neil Gorsuch summarily dismissed the district’s endorsement concerns, writing that the Court’s longstanding standard, Lemon v. Kurtzman, was already dead: “This Court long ago abandoned Lemon and its endorsement test offshoot.”

Then, in Carson v. Makin, the Court held that the state of Maine could not exclude religious schools from participating in a program that paid tuition for schoolchildren to attend private schools. Even though Chief Justice Roberts noted that a state could fund only secular public education, once the state chose to subsidize any private education it could not deny funding of religious schooling. “[A] state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.” Principles of nondiscrimination of religion prevailed over non-establishment. Justice Sotomayor’s dissent accused the conservative majority of “revolutionizing” religion clause jurisprudence through its recent decisions. “In just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits states to decline to fund religious organizations to one that requires states in many circumstances to subsidize religious indoctrination with taxpayer dollars.”

Ascendant Free Exercise

While the Court has been dismantling the non-establishment side of separation it has been buttressing the separationist side of free exercise. The expansion of the ministerial exception protection for religious employers is one example. Another example occurred during the COVID-19 pandemic, during which tens of millions of Americans became ill or died. State health officials responded to the highly transmittable virus by ordering the closing of schools and nonessential businesses while imposing social gathering restrictions on other entities where people congregated. Included among those entities subjected to gathering restrictions were shops, clubs, theaters, and churches. Several churches sued, complaining that the neutral restrictions limited the number of congregants at worship services and thus violated their rights to the free exercise of religion. Initially a divided Supreme Court upheld the regulations, but after the death of Justice Ruth Bader Ginsburg and the appointment of Justice Amy Coney Barrett, a Court majority sided with the churches, ordering the states to exempt the churches if they allowed any other exemptions, even though the churches were treated no worse than most comparable entities. In another case arising shortly thereafter, the Court held that a city’s department of human services could not enforce its neutral nondiscrimination policy on a religious foster care contracting agency when the agency raised religious objections to serving gay married couples.

These decisions indicate that the Court is adopting a “one-sided” application of church-state separation. Free exercise values are ascendant, while non-establishment interests are in decline. The express inclusion of the two religion clauses in the Constitution suggests two things, however: that the framers of the First Amendment saw both values—free exercise and non-establishment—as equally important; and that they perceived religion to be distinct from other values in ways that sometimes necessitates “distinctive” treatment. The framers had witnessed the corruptions of religious establishments and the destabilizing effects that religious dissension had on popular governments. At the same time, they worried—as James Madison expressed it—that private religious factions might unite and gain prominence over civil society. Religion was distinctive because it served as a central, and unique, organizing medium in many people’s lives, but also because religion had a long history of acting out of self-­interestedness and being used for political purposes.

The two religion clauses thus sought to balance this distinctive nature of religion. This has meant that religiously motivated conduct should sometimes be exempt from neutral laws because of the disproportionate impact they have on religious actors. So, as discussed above, the ability of houses of worship to define themselves and carry out their religious ministry unencumbered may necessitate an exemption from employment discrimination laws when it comes to hiring or dismissing their clergy. The caveats for such distinctive treatment should include a showing of a significant impact upon religious practice and a minimal burden of the accommodation on third persons.

On the other side, the non-establishment principle requires that an accommodation not turn into privileging religion. It also instructs that government should treat religious entities differently when it comes to financial and symbolic assistance that advances their religious ministries. History has taught that treating religious ministries the same as their arguably secular counterparts frequently devolves into governmental preference of some religions over others, the awarding of government authority to religious authorities, and then invites government regulation of those religious entities. James Madison and Thomas Jefferson understood that only by maintaining a true separation between the powers and functions of the church and state, where neither entity could use the imprimatur of the other to achieve its goals, would religious freedom be secure. They understood the value of separationism as benefiting both institutions.

A symmetrical balancing of religious distinctiveness was the hallmark of the Supreme Court’s church-state jurisprudence until the late 1990s. Since then, the Court has been embracing an asymmetrical notion of distinctiveness.  Recent Court decisions have enhanced this asymmetrical form of distinctive treatment by privileging religious expression over its secular equivalence and by minimizing the impact of the accommodations on third parties. But when it comes to receiving public benefits, to gaining access to government forums, or to engaging in religious expression in government-­controlled environments such as public schools, the notion of distinctiveness has been replaced by the rubric of equal treatment. As two scholars conclude, in recent years “the place of religion in constitutional law has been radically inverted. Establishment clause norms have withered while free exercise concerns have blossomed.” This has resulted in a loss of the “basic principle of symmetry” informing the two religion clauses. This trend of “asymmetrical constitutional arrangements that guarantee equal or special benefits to religion, while relieving religion from equal obligations, will badly strain the bonds of a religiously pluralistic society.”1

This observation is well taken. As religious pluralism expands in the United States, the Supreme Court’s one-sided approach to adjudicating religious controversies places its jurisprudence in uncharted waters. It also sets it at odds with the nation’s historical traditions regarding church-state matters. As Justice Sandra Day O’Connor stated poignantly in her final opinion before retiring: “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

1 Ira C. Lupu and Robert W. Tuttle, “The Remains of the Establishment Clause,” Hastings Law Journal 74 (August 2023): 1811.

Article Author: Steven K. Green

Steven K. Green, J.D., Ph.D., is Fred H. Paulus professor of law and affiliated professor of history and religious studies at Willamette University in Salem, Oregon. He previously served as legal director and special counsel for Americans United for Separation of Church and State. Professor Green is the author of six books, the most recent being Separating Church and State: A History (Cornell University Press, 2022).