By Brent Walker
Defending religious liberty by standing up for the separation of church and state sometimes results in unpopular outcomes.
Saying no to a state-sponsored Ten Commandments monument in the middle of an Alabama courthouse will sometimes raise eyebrows. After all, you say, half of the Ten Commandments deal with secular issues and the rest, while religious, can’t cause any harm, right?
Criticizing the congressionally mandated and presidentially proclaimed National Day of Prayer can get you into some hot water. Baptists against prayer? Can’t be.
Defending the “ministerial exemption” — allowing churches to select their leaders without court oversight or interference — sounds good, but when it results in discrimination against a vulnerable employee and throws her claim out of court, even hard-core separationists can wince.
The current debate over whether we should provide federal financial aid for churches and other houses of worship damaged by Hurricane Sandy is another one of these tough cases that stirs up a debate and splits the religious community.
Theological and constitutional principles ensuring religious liberty must apply and be followed in the hard cases as well as the easy cases. We enjoy unprecedented religious liberty in this country precisely because, over the past 222 years, we have stuck to our principles of voluntary, self-sufficient religion and disallowed governmental help or harm, even in the tough cases.
The First Amendment’s Establishment Clause simply does not permit government to provide outright grants or similar financial support to churches and other houses of worship. Simply put, we do not allow taxpayer dollars to build churches; we should not allow taxpayer dollars to be used to rebuild churches either.
U.S. Supreme Court jurisprudence on this point is clear. A generation ago, Baptist Associate Justice Hugo Black wrote, in Everson v. Board of Education (1947), that opposition to “[t]he imposition of taxes … to build and maintain churches and church property” provided impetus to the Founders’ desire to completely disestablish religion in the First Amendment. Justice Black opined that our wise forbears “reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions….”
Supreme Court precedent since then has followed suit. Federal construction grants to religiously affiliated colleges can be upheld only if the buildings constructed are not used for religious activities. (Tilton v. Richardson, 1971) The Court has specifically held that no public funds can be used to repair or maintain facilities dedicated to the teaching of religion. (Committee for Public Educ. v. Nyquist, 1973).
And even though the Court has loosened the reins somewhat on indirect aid to religious institutions (e.g. educational equipment and school vouchers), it continues to make clear that direct monetary contributions of taxpayer dollars create “special Establishment Clause dangers.” (Mitchell v. Helms, 2000).
Happily, we have ways to empathize with and provide aid to churches and other religious organizations damaged by the terrible storm. Of course, money to help churches rebuild can come through the private sector. Denominational efforts and grants from foundations and contributions of the faithful, as well as insurance proceeds, should not be overlooked.
Moreover, churches and houses of worship may be eligible to obtain government loans under the Small Business Administration disaster loan program. It is permissible for churches to participate in low-interest, long-term loans for damage not covered by insurance. Such loans no more raise Establishment Clause concerns than does tax exemption for religious nonprofits under Section 501(c)(3). Neither transfers government funds to churches; both are accommodations that do not take away taxes or full market interest.
It is simply not a good idea — however our heartstrings are tugged — to give churches access to the public till. Our heritage of voluntary religion would be offended and constitutional difficulties are apparent. The proper avenue for governmental involvement — mainly low-interest guaranteed loans — taken together with what I trust will be a generous outpouring of tax-deductible contributions from the religious community, is the way to go.
It is important for us to do good, but we must never do so at the expense of compromising constitutional principles that, after all, have stood for more than two centuries to ensure religious liberty for all.
— This commentary appeared in the February 2013 Report from the Capital and is used here with permission.
