Constitutional principles

The Undoing: Church-state separation in America

In Short

We are seeing at all levels of government a fundamental restructuring of the relationship between religion and state that is having a profound impact on Jewish communal and religious institutions, while contributing to a heightened debate in connection with the Constitutional principles undergirding these actions.

Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.

We are experiencing a rapid and radical shift in governmental policy and practice in connection with American religious life and the undoing of the First Amendment’s prohibitions concerning the state’s engagement with religion. A conservative Supreme Court, along with a deep ideological commitment among evangelical Republicans to grow the influence of religion within our society and the recent introduction of governmental funding programs earmarked for religious institutions is resulting in a fundamental reconfiguration of the church-state relationship.

No doubt, a significant impetus for these changes can be directly linked to the rise of both global and domestic terrorism, with Jews often being identified as targets, the 2008 economic crisis and its impact on all sectors of society and the economic fallout of the 2020 pandemic, each of these factors has also contributed to this changing equation of church-state relationships. Responding to each of these situations, the federal government has accelerated its financial connections with the religious sector.

The Changing Viewpoint of the Court:

In recent years, the Supreme Court’s conservative majority has whittled, and sometimes hacked away at the Constitution’s wall of separation between church and state. The court’s actions are not alone in driving a new constellation of relationships between government and religion in America.  

Beyond the courts and the on-the-ground events covering the past two decades, there is a major philosophical battle underway within this society, pitting Republican evangelicals against traditional religion “separationists.” Beginning in 2012, Republicans began accusing Democrats of waging a “war on religion” and in turn, liberals have been questioning the GOP’s growing commitment to embrace the “religious right” and to expand the reach of government into the religious sphere.

The Courts and the Establishment Clause:

The shifting court majority has been nowhere more apparent than in cases dealing with religious education. In a series of cases, the court has upheld state-funded voucher programs for religious schools, and in a case from Montana (Espinoza,  ET. AL. v. Montana Department of Revenue, ET. AL.) last year, the Court partially rendered ineffective state regulations that ban aid to religious schools.

“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.” 

Chief Justice John G. Roberts Jr. offered this observation when writing the 5 to 4 majority ruling noting that the Constitution’s protection of the free exercise of religion requires equal treatment for religious schools and parents who want to send their children to such institutions.

The court’s majority said the Montana Supreme Court was wrong to strike down a tuition assistance program established by the state legislature in 2015. It allowed for tax incentives for scholarships to private schools, including religious ones.

Now comes a new wrinkle presented in a case from Maine (Carson v. Makin). The state has some 180,000 schoolchildren living in rural areas, where more than half the school districts have no public high schools. To deal with those students, the state contracts with a nearby public school to take them and provide transportation if necessary. Often, such families turn to private and parochial schools to meet their needs.

On December 8th of this past year, the U.S. Supreme Court heard arguments on whether Maine’s policy of school vouchers violated the constitutional rights of the individual. In 2018, the Carson family joined a lawsuit with Troy and Angela Nelson, another Maine family who wanted to use the tuition assistance program to send their son to a religious school but weren’t able to, alleging the state violated both the religion and equal protection clauses of the Constitution by excluding schools that provide religious instruction from its tuition program. A federal district court and the 1st Circuit Court of Appeals disagreed, ruling that Maine’s policy was in standing with the separation of church and state. But the families appealed, with the support of the libertarian law firm the Institute for Justice, the Supreme Court will now determine the outcome.

In its filing, Maine has pointed to the Maine Human Rights Act, a law that prohibits discrimination on the basis of sexual orientation, arguing that “accepting public funds would result in a significant change to how [the two schools] operate,” including that they would “likely” no longer be able to refuse to hire gay people. Both Bangor Christian and Temple Academy have already said they would not accept funds from Maine’s tuition program if it meant they have to change their policies, including hiring and admissions practices.

The Orthodox Union has joined this case in support of vouchers. Nathan J. Diament, Director of its Advocacy Center, has put forth the religious liberty argument by noting:

“The essential promise of the First Amendment’s religion clause is to guarantee religious freedom in the United States by requiring government neutrality toward religion. A state discriminating against religion – as Maine is in its tuition assistance program – is just as unconstitutional as a state promoting one particular religion. In Carson v. Makin, the Supreme Court has yet another opportunity to advance religious liberty for all Americans of all faiths.”

But the matter of vouchers is but one of several challenging issues as this nation undergoes both a legal and policy reassessment of its historic principle of church-state separation.

The Court seems inclined to permit direct aid to religious entities that are not pervasively sectarian. The Court has held that it is constitutionally permissible because the secular functions of such entities can be distinguished from their religious ones for purposes of public aid. The justices have argued that because the risk of diversion of the aid to religious purposes is attenuated, intrusive government monitoring of such assistance is unwarranted. As a practical matter, this distinction has had its most serious consequences for programs providing aid directly to sectarian elementary and secondary schools. The Court has, until recently, presumed such schools to be pervasively sectarian and has limited direct aid, as a consequence. With respect however to religiously affiliated colleges, hospitals and social services, the Court has held to the contrary.

School Prayer and Other Matters:

Even though the Supreme Court ruled in 1962 that it is unconstitutional for a teacher to lead a class in prayer at a public school, 8% of public-school students ages 13 to 17 say they have experienced such religious rituals, according to a 2019 survey. This practice tends to be more prevalent in the South (12%) than in the Northeast (2%).  By contrast, four-in-ten U.S. teens in public schools (41%) feel that it is appropriate for a teacher to lead a class in prayer, including 29% of teens who know that this practice is banned but say that it is acceptable nevertheless.

With the current legal construct of this Court, involving its conservative majority, we are likely to see a significant shift around such policy matters as abortion, gun rights, immigration, church-state matters and health care, all issues of significant interest to the Jewish community.

The Pandemic and American Religion:

The  SBA (Small Business Administration) program takes federal funding of religious institutions significantly further. Under the Paycheck Protection Program, businesses with fewer than 500 employees, including faith-based organizations, were eligible to receive loans of up to $10 million, with at least 75% of the money going to cover payroll costs. These loans are in large part forgivable, so churches and other houses of worship don’t have to worry about paying all the money back.

Organizations that advocate for strict church-state separation have criticized this program:

The government cannot directly fund inherently religious activities,” argues Alison Gill, legal and policy vice president of American Atheists. “It can’t spend government tax dollars on prayer, on promoting religion [or] proselytization. That directly contradicts the Establishment Clause of the First Amendment. This is the most drastic attack on church-state separation we have ever seen.”

Religious Security Concerns and the Role of Government:

In response to both international and domestic threats to Jews and Jewish institutions, the federal government, in cooperation with national Jewish organizations, developed a Department of Homeland Security program to assist religious institutions with security measures.

In 2009 the DHS initiative  provided security enhancement grants. Sixty-three% of nonprofit grant recipients were “affiliated with Jewish organizations.” In 2010, 94% of the department’s nonprofit security funding went to Jewish groups that are, in the words of the Department of Homeland Security, “at high risk of terrorist attack.” The following year, more than 80% of the program’s $20 million were earmarked for Jewish nonprofits across the country. In response to the creation of this federal program, the Orthodox Union formed a security office, as have numerous federations and other agencies.

As the security concerns have increased in connection with arson attacks and other threats to Jews and to Jewish institutions, in 2021 The Jewish Federations of North America have created LiveSecure, a program in partnership with the Department of Homeland Security permitting communities to “be connected to a special surveillance and security network.”

Attempted arson attacks, vandalism, the dissemination of anti-Semitic materials and packages containing potential toxic materials are just some of the threats Jews in North America have recently had to face. This joint government-federation initiative will permit communities “to be connected to a special surveillance and security network.” With this agreement, synagogues will receive closed-circuit security cameras, have secure doors installed, and community members will be trained for potential terrorist threats.” In addition, synagogues will be able to engage private security guards for special occasions.

The Public View on Church-State: 

Yet, as a 2020 Pew Study confirms Americans remain committed to supporting the principle of church-state separation. For decades, the Jewish public policy establishment held to a firmly articulated legal position of church-state separation. Moving forward, the battle over government aid to faith-based organizations will likely be more political than legal. The public supports such assistance, but important constituencies in both political parties are suspicious of it.  

More than six-in-ten Americans (63%) say churches and other houses of worship should stay out of politics. An even higher share (76%) say these houses of worship should not endorse political candidates during elections, according to a 2019 survey. Still, more than a third of Americans (36%) say churches and other houses of worship should express their views on social and political matters. In connection with this matter, we need to remind ourselves of the presence of the Johnson Amendment, enacted in 1954, which prohibits tax-exempt institutions like churches from involvement in political campaigns on behalf of any candidate.

Secular opponents fear that these programs impede social progress. Sectarian opponents fear that faith-based groups’ alliance with secular authority will trivialize or dilute religion’s message.

An Historic Assessment:

Until the Great Depression, the Jewish community held to its traditional position of not seeking or accepting state assistance. Invoking what had come to be known as the “Stuyvesant Doctrine” an agreement involving the arrival of the first Jews to this continent in 1654, settling in the colony of New Amsterdam (New York). On that occasion the Dutch West India Company issued a letter granting permission for the community to stay, based on the following understanding: “so long as they (Jews) did not become a burden to the company or the community.” For the first 300 years of their presence in North America, America’s Jews adhered to this doctrine, managing their social welfare concerns independent of state assistance.

Both the Reform movement, through the establishment of the Religious Action Center (RAC) in 1959, and the Orthodox Union’s Advocacy Center, the policy arm of the OU, have been charged with addressing an array of issues of both generic and particular interest. The presence of these institutional voices adds another dimension to Jewish religious influence and advocacy but also points to the deep divisions within our community over matters of religion and state. As the Orthodox community continues to grow and flex its political presence, we are certain to see a more contentious environment in connection with government funding of religious institutions, as well as disagreements over abortion and other public policy positions. Correspondingly, as outside pressures mount in connection with such challenges, including the threat of terrorism, economic crisis or pandemics, the Jewish community will become increasingly dependent on growing its partnership with governmental agencies.

End Note:

Regardless of how the Supreme Court may rule on the various cases now pending, we are seeing at all levels of government a fundamental restructuring of the relationship between religion and state that is having a profound impact on Jewish communal and religious institutions, while contributing to a heightened debate in connection with the Constitutional principles undergirding these actions.

Steven Windmueller is professor emeritus of Jewish communal studies at the Jack H. Skirball Campus of HUC-JIR. His writings can be found on his website, www.thewindreport.com.