November 2016 Church & State | Featured

Editor’s Note: J. Brent Walker has served as executive director of the Baptist Joint Committee for Religious Liberty (BJC) since 1999. An ordained Baptist minister and an attorney, Walker has been a strong advocate for separation of church and state for decades. The BJC is a close ally of Americans United; together the two organizations have opposed mandatory school prayer, private school voucher plans and other attempts to link church and state.

Walker recently announced that he will retire from the BJC at the end of this year. He spoke with Church & State last month about his time with the BJC and the importance of church-state separation.


Q. You’ve worked in the field of religious liberty and church-state separation for a long time. What made you decide to dedicate your professional career to this issue?

            Walker: After a 10-year law practice in Tampa, Florida, I sensed a call to ministry and decided to go to seminary. I had initially thought about pastoring or teaching. But, while attending an Americans United National Conference during my third year in seminary in the fall of 1988, I met up with James Dunn and Buzz Thomas from the Baptist Joint Committee. I was fascinated by what I learned at the AU conference and started thinking about combining my law and theology as a ministry of a different sort. I was later hired to help with the BJC’s legal work and, upon James Dunn’s retirement in 1999, I became executive director. My association with the BJC has provided a near-perfect blend of law, theology, Christian ethics, politics and the fun of living in Washington, D.C., to boot. These years have been the pinnacle of my professional career.

 

Q. As you look back on your tenure, what pleases you most about your time with the BJC?

Walker: The ability to have a rewarding and fruitful ministry on issues that matter. Having the opportunity to influence the U.S. Supreme Court through friend-of-the-court briefs, working with Congress and advising the White House on critical church-state issues have presented a rare opportunity to blend my interests and expertise for a worthy cause. It has also given me a unique chance to do “bucket list” kinds of things. These would include having significant and substantive time with four U.S. presidents, personally meeting eight Sup­reme Court justices, appearing in the national media (both on television and in print), teaching church-state law for 10 years at the Georgetown University Law Center with Rabbi David Saperstein, traveling worldwide and meeting hundreds of interesting people.

 

Q. I know you have some disagreements with the Southern Baptist Convention on church-state issues. Tell us a little about what separation of church and state means to traditional Baptists such as yourself.

            Walker: The separation of church and state, as important as it is, is simply a constitutional means of ensuring religious liberty for all, not an end in itself. It is another way of saying that government should not try to help religion or try to hurt religion, but it should leave religion alone. Using language from the First Amendment, there should be no establishment of religion and no interference with the exercise of religion. These clauses always must be taken together and held in tension. They command an institutional and functional separation of church and state as a constitutional means to the end of ensuring religious liberty for all.

Four centuries of Baptist history teach us that religious liberty is best protected when the institutions of church and state remain separate and neither tries to perform or interfere with the essential mission and work of the other. Our nation’s  founders,  as well as early Baptists such as Roger Williams and John Leland, understood the painful lessons of history, both in Europe and colonial America, that when government starts to meddle in religion – for or against – or takes sides in religious disputes, someone’s religious liberty is always denied and everyone’s is threatened.

 

Q. One of the epic battles of recent years was the so-called “Religious Freedom Amendment,” also known as the “Istook Amendment” for U.S. Rep. Ernest Istook (R-Okla.), who sponsored it. AU and the BJC argued that this amendment, if added to the Constitution, would have removed separation of church and state from the First Amendment. We defeated the amendment. Can you share some memories from that fight?

            Walker: The so-called “Istook Amendment” was the most potentially damaging threat to the First Amendment in my 27 years in Washington. Among others things, it would have restored state-sponsored prayer in public schools and opened the door wide for funding for religious teaching and subsidies for houses of worship and religious enterprises. Indeed, the Baptist Joint Committee and Americans Uni­ted stood shoulder-to-shoulder in this effort, working with courageous members of Congress like Rep. Chet Edwards from Texas. The proposal was defeated, falling 61 votes short of the two-thirds majority needed in the House of Representatives.

Two anecdotes come to mind. First, I recall the “Istook is Mistook” buttons that we all wore in our lobbying efforts. The phrase was coined by Forest Montgomery, the general counsel of the National Association of Evangelicals. Forest, who sadly passed away just this past year, stood firm in his opposition to this tinkering with the First Amendment – facing down, I am sure, a lot of constituent pressure to support the measure. Forest was one-of-a-kind and a dear friend – to me and to religious liberty.

The other somewhat humorous anecdote came when I was called to appear on the “PBS News­ Hour,” along with Rep. Istook, Sen. Patrick Leahy, and [Religious Right figure] Rob Schenck. I arrived at the studio early, as did Rep. Istook. When he learned that I was a Baptist, he immediately assumed I was on his side of the issue. He gushed about how important the measure was and how glad he was that Baptists supported it. After I disabused him of that “mistooken” notion, he was quite chagrined and clammed up until we went on the air.

 

Q. Our nation is involved in a discussion over the meaning of religious freedom. How do you define this term? Does it, for example, give a government official or the owner of a store the right to refuse service to same-sex couples?

            Walker: Religious liberty is the freedom to believe and to act upon those beliefs without undue interference by the government. Religious liberty also means the freedom not to practice religion and to be free from state-sponsored religion. As with other First Amendment freedoms, religious liberty is not without limits. As the old saying goes, “the right to swing my fist ends where your nose begins.”

Some religious beliefs or practices conflict with other laws – such as compulsory education laws, animal protection laws, anti-drug laws and a variety of anti-discrimination laws. In those cases, legislatures and courts must step in to determine how to accommodate sincere religious practice while protecting other government interests, including protecting those who may not share the same beliefs or who are disadvantaged by those who seek the governmental accommodation.

So when government makes an exception for religious exercise, it must look out for the rights and well-being of others as well. Owners of stores and businesses have the right to refuse service to anyone they see fit, unless the customer is a member of a class protected by an applicable public accommodation law. If sexual orientation is protected in any given jurisdiction, then, generally speaking, vendors must provide a service to them, including same-sex couples seeking to marry. I do think, however, exceptions can be made where the vendor is being asked in some way to meaningfully participate in an objectionable religious rite like a wedding ceremony. This would include, for example, wedding planners, musicians and maybe photographers.

 

Q. The BJC and Americans United worked with other groups in the 1990s to pass the Religious Freedom Restoration Act (RFRA). The legislation has been interpreted by the Supreme Court in ways that many people believe harms the rights of the others. Is there a way to fix RFRA?

            Walker: The Religious Freedom Restoration Act was a much-needed statute to restore a high level of protection for religious exercise after the Supreme Court gutted such protection from the First Amendment in 1990. RFRA strikes a delicate balance between protecting the rights of conscience and the rights of others and society generally. When government imposes a substantial burden on  one’s exercise of religion, the claimant can insist upon an accommodation or an exception, unless the government can show it is pursuing a compelling interest – an interest of the highest order based on the health, safety or welfare of others – and that it is doing so in a narrowly tailored way.

The Baptist Joint Committee continues to support federal RFRA – as well as state RFRAs that mirror the same language. We may disagree with the outcome in a particular case, but RFRA provides a fair process allowing the courts to balance religious claims with other interests. So, under the former constitutional test and the RFRA balancing, the courts are supposed to take into account the detrimental effects to third parties. This is part of what showing a compelling state interest is all about. Moreover, the Supreme Court has said that prejudice to third parties can not only justify denying the accommodation but actually can amount to a violation under the no-establishment clause of the First Amendment.

 

Q. What in your view is the proper role of religion in public schools?

            Walker: The proper role of religion in the public schools can easily be stated, but sometimes not so easily applied. The fundamental idea: state-sponsored religion and religious exercises, no; voluntary student expression of religion in a variety of ways, yes – as long as it does not disrupt the educational process or infringe upon the rights of other students not to participate.

One can provide a laundry list of permissible activities if done correctly, many of which have been incorporated into guidelines that have been embraced by organizations across the spectrum. This would include voluntary student prayer, the wearing of religious garb and accessories, religious clubs meeting before and after school along with other non-curriculum-related groups, and objectively teaching about religion at the appropriate places in the curriculum without proselytizing. Sometimes, even voluntary student expression of religion can be so much couched in a government-sponsored context that it becomes unacceptable state promotion of religion. Examples of this would include a student prayer at graduation and football games, where many indicia of government sponsorship are present.

 

Q. Like Americans United, the BJC has long opposed tax funding of religious schools through vouchers. What is the problem with government aid to religious institutions?

            Walker: Yes, the Baptist Joint Com­mittee has long opposed tax subsidies to religious schools, through vouchers and direct grants, which are problematic for many reasons. Most prominently, such funding is a classic violation of the “no establishment” principle. Indeed, in colonial Virginia, one of the earliest controversies – Patrick Henry’s bill to impose a tax for the teaching of religion – was scuttled through the efforts of James Madison, along with Baptists and other free church denominations. Moreover, such funding actually harms religion.

Government always regulates what it funds with public tax dollars. When religious organizations come to rely on government funding, religion’s prophetic function is watered down and its vitality vitiated. All of this said, there are ways in which religious bodies can partner with government where they find common cause, ideally through spinning off a separate 501(c)(3) where social services can be delivered to a needy population without requiring a religious instruction or proselytizing. President Obama’s executive order contains constitutional safeguards to steer clear of some of the more difficult problems.

 

Q. The BJC’s supporters come from the Christian tradition. Americans United is more broadly based. Some of our members are believers, and some are not. How important is it that we have a variety of voices speaking up for the church-state wall?

            Walker: It is important that a variety of voices speak up for church-state separation and religious liberty. That is why most of the Baptist Joint Committee’s work in the courts and Congress is done in coalition with other religious groups and civil liberty organizations, like Americans United. Where people or groups with diverse theological points of view, political orientation and parochial interests come together to support or oppose a given measure, policy makers sit up and take notice. The message’s credibility is augmented by diverse voices. So, for example, where Americans United or the ACLU promotes a free exercise claim, or where the Baptist Joint Committee lobbies for separation and against funding for religion, the argument is strengthened. 

I might add that there is historical precedent here. I am referring to that colonial coalition that brought together Enlightenment rationalists and evangelical pietists to lobby for the First Amendment’s religion clauses. And the BJC’s first executive director, J.M. Dawson, was instrumental in founding AU in 1947. We have had a mutually beneficial and warm relationship ever since.

 

Q. You have a passion for these issues, and I don’t imagine you are simply going to fade away. What’s next for you?

            Walker: I don’t quite know yet what is next. For the first year, I will continue to do a little work with the Baptist Joint Committee to help with the transition and to organize my papers and books and so forth. After that, I’m simply going to stand open to the prospect of new areas of ministry along with a lot of fun stuff, like spending time with my grandchildren, enjoying baseball and traveling.