September 2022 Church & State Magazine

The Way Forward: The Supreme Court Is Eroding Church-State Separation. Where Do We Go From Here?

  The Way Forward: The Supreme Court Is Eroding Church-State Separation. Where Do We Go From Here?

Editor’s Note: The Supreme Court’s 2021-22 term was devastating for separation of church and state. In light of these judicial attacks on the church-state wall, many people have been asking where we go from here.

Church & State asked four prominent defenders of church-state separation to address that issue. Their thoughts are collected in this article.

Hope In ‘We the People’ To Protect Religious Freedom

By Amanda Tyler

We have suspected this for some time, but the U.S. Supreme Court’s most recent term has made it clear: We simply cannot count on the court to ensure the separation of the institutions of religion and government, which protects everyone’s religious freedom.

Reading the opinions in Carson v. Makin and Kennedy v. Bremerton, we see that a six-justice majority of this court views different treatment of religion when it comes to state benefits as per se discrimination. They have abandoned long-standing doctrines that have supported the principles of no establishment that ensure our government stays neutral when it comes to religion.

These rulings depart from the American religious freedom tradition in ways that we fear will harm religious freedom of public school students and their families, lead to even greater discord over religion and could even threaten the system of public education itself.

The court’s abandonment of foundational religious freedom concepts comes at the same time we see a dramatic rise in the intensity of Christian nationalism across the country. Chris­t­­ian nationalism is a political ideology and cultural framework that seeks to merge the identities of Americans and Christians, sending the signal that only conservative, white Christians are “true Americans.” As the lead organizer of the Christians Against Christ­ian Nationalism campaign, which launched three years ago, I have studied and spoken out against this political ideology as an urgent threat to American democracy, the Christian faith and religious freedom for all. In recent months, the most ardent ambassadors of Christian nationalism have taken an unsuspected and troubling turn, openly embracing a “Christian nationalist” label and urging others to join them.

Given the deterioration of legal protections for faith freedom for all and the rise of Christian nationalism, it is natural to not only experience disappointment and concern but even to fall into despair. Where do we go from here, and how do we find hope?

I come at this work from a religious perspective, specifically as a Baptist Christian leading a national advocacy and education organization that for 86 years has worked to defend the separation of church and state. BJC builds on the best of our Baptist tradition and theology to stand up for everyone’s faith freedom, working in coalition with other religious and secular groups. Hope is a core value for many faith traditions, including mine, and one on which I think we must draw at this pivotal time.

I find hope in the strong collaboration among organizations that continue to lead the fight to protect religious freedom for all. The court’s attack on separation of church and state makes our shared mission even more important – to articulate the importance of a secular government in defending the right of all Americans to choose how they will practice religion or whether they choose not to be religious. I am grateful to the many supporters of our organizations for continuing to invest generously in the advocacy that our country desperately needs.

I also find hope in dissent – not just in powerful dissenting opinions written by justices, but even more crucially, in the outcries from the public at the injustices perpetrated by this court. We Baptists come from a long line of religious dissenters who stood against established religion to defend the religious freedom of our neighbors – not just Baptists or Christians, but people who practice other faiths and the nonreligious. The words of Virginia Baptist preacher John Leland from 1791 ring truthfully and prophetically today: “Let every person speak freely without fear, maintain the principles that he believes, worship according to his own faith, either one God, three Gods, no God, or twenty Gods; and let government protect him in doing so.”

The fact that the court rules some action to be constitutional does not mean it is right or that it furthers liberty. We can understand this truth more deeply when we learn from history and we listen to how others have responded when freedom has been limited by government action. BJC has been exploring how religious freedom has been white too long – how our understanding and defense of religious liberty has been limited by a vision of freedom that has centered the white experience and ignored or minimized the perspectives and experiences of our BIPOC neighbors. Broadening our understanding and building a more inclusive table for collaboration will be crucial to advocating for church-state separation in this perilous new era.

In the responses to threats to our freedom, I see people standing up for their neighbors like never before. I see people asking, what can we do about Christian nationalism? We may have grown complacent in the past about the urgency of our personal need to respond, but now when our communities need us most to stand up against injustice, it is imperative that those of us who care about the institutional separation of religion and government raise a loud dissenting voice.

Our greatest impact comes when we speak up in our local communities, standing against Christian nationalism in our neighborhoods, houses of worship, schools, school boards, city councils and state legislatures. Advocacy is strongest in coalition, with alliances be­tween Christians, religious minorities, and the nonreligious standing together. One recent example comes from Lancaster, Pa., where Christian leaders and business leaders came together to oppose a local event that was promoting Christian nationalism. They generated enough pressure that the restaurant that originally scheduled to host the event canceled, refusing to platform the dangerous ideology.

Just because we cannot rely on the Supreme Court to protect the religious liberty of all Americans, it doesn’t mean that the fight for religious freedom is over. Instead, it’s time for individual Americans – for “We the People” – to become more directly involved in standing up for our neighbors’ liberty as we form a more perfect union. I know that supporters of AU and BJC agree – it’s game-on in the struggle against Christian nationalism and for the religious freedom rights of all Americans. I’m honored to be in this fight with you.

Amanda Tyler is executive director of BJC (Baptist Joint Committee for Religious Liberty), lead organizer of the Christians Against Christian Nationalism campaign, and co-host of the “Respecting Religion” podcast. Follow her on Twitter @AmandaTylerBJC.

The Supreme Court Is  Undermining Our Rights – But All Hope Is Not Lost

By Hemant Mehta

With a barrage of Supreme Court rulings destroying an already weakened wall between church and state, is there any way for us to push back?

The simplest answers involve legislative fixes. Eliminate the filibuster in order to pass laws protecting women’s rights, banning assault weapons, etc. Unpack a court that Republicans have manipulated to their delight over the course of decades. Eliminate faith-based loopholes in our laws. All of those require a kind of electoral math that is becoming increasingly impossible to achieve at a national level.

But that doesn’t mean all hope is lost.

We live in a nation that is becoming less religious, more diverse and increasingly frustrated with the direction that conservative Christians in power are taking us. With climate change posing an existential threat to all of us, gun safety stymied by lawmakers who refuse to regulate assault weapons, sex education constantly under attack, reproductive rights being reversed in real time and hard-fought LGBTQ rights next on the chopping block, there is a growing backlash against the kind of faith-based legislation and rulings that got us to this point. At some point, the rubber band of our democracy is going to forcefully snap back because it just can’t take any more.

The side that supports church-state separation has the majority, the morals and the motivation. We just need them to come together at the same time.

And unlike in previous decades, church-state separation advocates also have new allies in our cause: religious groups who are also put off by the power of the Christian Right. One could argue that when it comes to values, progressive Christians, secular Jews, about half the Catholic Church and a number of religious minorities have far more in common with atheists than they do with conservative theists. What used to be a lonely fight against faith-based causes has actually brought many religious people over to our side. They understand that church-state separation benefits both sides, and they are eager to fight for that cause.

How can we accelerate that momentum? To begin with, we must criticize Christian nationalism by name whenever possible. It’s not enough to criticize bad decisions without also condemning the religious thinking that got us to this point.

Let’s not say the Supreme Court reversed Roe or returned abortion rights back to the states. Instead, let’s tell the truth: The court imposed a conservative Christian belief about “fetal personhood” from red states across the country instead of respecting legal precedent.

Why say the court ruled in favor of religious freedom when the truth is that they want Christian coaches to use their positions of authority to impose their faith on all students?

Why should we take for granted that “sincerely held religious beliefs” always seem to take precedence over common sense and public health?

Until we call out the problem for what it is, we will not be able to fight it. People may have political differences, but a vast majority of Americans have no desire to live in a quasi-theocracy controlled by the most influential right-wing evangelicals in the nation. The conservative Christian dream is a nightmare for everyone else.

The irony is that the Religious Right has spent decades fighting for the kind of power and control they have today, and yet our country has never felt more divided or weakened. It’s hard for conservative Christians to argue that their beliefs have made the country better for everyone, and it’s up to us to constantly point out how they’ve hurt us. The more people realize that, the more we can mobilize them to run for local office, vote in swing districts and retake control of a government that’s been hijacked by religious zealots who have no respect for the Establishment Clause and who think separation of church and state is a myth.

Hemant Mehta is the founder and editor of FriendlyAtheist.com, a You­­­Tube creator and podcast co-host. He has appeared on CNN and FOX News and served on the board of directors for Foundation Beyond Belief and the Secular Student Alliance. Follow him on Twitter @hemantmehta.

Reclaiming Religious Freedom: Why Words Matter

By the Rev. Dr. Brian Kaylor

As the recent Supreme Court session ended with seismic shifts knocking loose several bricks from the wall separating church and state (and chipping away other rights), what came next quickly signaled things could get even worse. It’s not just that state legislatures and federal judges will pick up the decisions and move the goalposts even farther. A key warning came as reporters and commentators – including some who should know better – quickly framed the high court’s new decisions as pro-religious liberty and even pro-religion.

With my Ph.D. in political communication, I’ve studied the rhetoric used in dozens of election campaigns and advocacy movements. If one side can define the terms and pick which words are used to frame the public conversations, they head into the political struggle with a significant advantage. Words aren’t merely garnish. They define our reality and shape the way we see the world and act within it.

That’s why I’m troubled by the way prominent media outlets framed decisions undermining church-state separation. After six justices ruled in Carson v. Makin that Maine must spend taxpayer money intended for public education on sectarian schools, a New York Times writer declared it came from “a pro-religion court,” adding that “the rise of the religious right has made religious freedom a political priority for Republicans.” But neither statement is true. After all, this suggests the three dissenting justices – Sonia Sotomayor, Stephen G. Breyer and Elena Kagan – are anti-religion for opposing the majority’s opinion. In reality, those justices argued that true religious liberty requires a robust separation of church and state.

Additionally, a quick look at some of the organizations that filed amicus briefs supporting Maine’s position shows the absurdity of the “pro-religion” logic. Among those urging the ruling that the dissenting justices offered: Baptist Joint Committee for Religious Liberty, Catholics for Choice, Central Conference of American Rabbis, Evangelical Lutheran Church in America, General Synod of the United Church of Christ, Hindu American Foundation, Methodist Federation for Social Action, National Council of Jewish Women, National Council of the Churches of Christ in the USA, Sikh Coalition and others. A ruling that rejects the perspectives of those groups cannot in good faith be called “pro-religion.”

Six days later, the same six justices ruled in Kennedy v. Bremerton for a public school official leading students in audible, public prayers while on the job on school property. Sotomayor, Breyer and Kagan again dissented, with Sotomayor writing that “today’s decision is no victory for religious liberty” – thus siding with AU’s arguments on behalf of the school district. But some still rushed to christen the conservative majority as the guardians of religion. For instance, Nina Totenberg of NPR claimed this ruling proved that “the current court is the most pro-religion of any court in nearly 70 years.”

Such a claim is even more offensive in this case than in Carson as multiple briefs came from clergy and faith groups urging the justices not to push official prayers in public schools. One brief included the American Jewish Committee, Baptist Joint Committee for Religious Liberty, Evangelical Lutheran Church in Am­erica, and General Synod of the Uni­ted Church of Christ. Another brief came from retired military chaplains who care not only about religion but also the religious liberty rights of everyone. Yet another brief came from clergy – including Baptist, Episcopalian, Jewish, Lutheran and Metho­dist ministers – in the community where the case emerged as they backed their public school instead of coercive prayer. And other briefs came from church-state scholars, members of Congress, and other experts who are religious.

To the suggestion that a ruling that went against all of those ministers and religious groups was “pro-religion,” there’s no better response than the classic line from “The Princess Bride”: “You keep using that word. I do not think it means what you think it means.”

It’s true that conservative Christians fare well with the current majority. But many such victories come at the expense of other Christians and those of other faiths or no faith. The Supreme Court isn’t increasingly pro-religion but instead increasingly antagonistic toward concerns about religious establishment. That means they aren’t promoting religion or religious liberty; they’re moving us closer toward Christian nationalism, where one faith gains civic privileges not afforded to those with other beliefs.

While this misuse of language frustrates and concerns me, it also offers a reminder of the work now needed by those who believe separation of church and state is good for both. There’s a lot broken in our political system right now that might seem beyond repair, at least by advocates like us who don’t hold congressional seats or run PACs with hundreds of millions of dollars. The Supreme Court might be lost for a generation. Congress might be stuck in gridlock for at least another dec­ade. Numerous state legislatures might continue as dumpster fires full of anti-democratic, Christian nationalistic bills for the foreseeable future.

But the linguistic struggle occurs in each newspaper, Facebook wall, house of worship and café conversation. It might seem trite to argue about words at a time like this. But as the justices in the high court’s majority continue their crusade, it will help the cause of church-state separation if everyone clearly calls a thing “a thing.” If ruling to require states to fund sectarian education and okaying school officials leading students in coercive prayer times is called “religious liberty,” then we’ll lose not only those cases but also public support for the very idea of religious liberty. But if such decisions are rightly categorized in the public’s imagination as “Christian nationalism,” then we can turn the focus on the danger undermining our democracy and even our houses of worship.

That’s why we all must call out this disinformation about a “pro-religion” court or the “religious liberty” agenda of Christian nationalists. We need letters to the editor and opinion pieces challenging misunderstandings of what religious liberty really means. We need clergy talking from their pulpits about true religious liberty for all, which requires church-state separation. After all, if someone doesn’t believe in religious liberty for all, then they don’t believe in religious liberty at all.

We must push back against efforts to redefine religious liberty as something that stands in opposition to the Establishment Clause. As Sotomayor warned in her Carson dissent, the court’s majority now “leads us to a place where separation of church and state becomes a constitutional violation.” She’s right. But we must not let Christian nationalists take ownership of terms like “religious liberty.” If they win that linguistic battle, then the struggle to defend church-state separation will become even more difficult. We must not remain silent.

The Rev. Dr. Brian Kaylor, a Bap­tist minister with a Ph.D. in political communication, is president and editor-in-chief of Word ­& ­Way. He writes about faith and politics at pub licwitness.wordandway.org. His Twitter handle is @BrianKaylor

We Must Still Defend The    Separation Of Church And State. Here’s How.

By Steven K. Green

The Supreme Court’s 2021 term was the most consequential for church-state jurisprudence since 1963, when the court first applied heightened scrutiny to free exercise challenges (subsequently overturned in 1990) and fashioned the first two prongs of its three-part analytical standard (i.e., the Lemon test) while striking the popular practice of mandated prayer and Bible reading in the public schools.

In two landmark rulings this past June, however, the conservative majority eviscerated the 75-year-old rule against government funding of religious instruction (Carson v. Makin) and effectively overturned 60 years of jurisprudence governing religious activities in public schools (Kennedy v. Bremerton School District).

At the same time, the conservative majority “trashed” (an appropriate term, here) the controlling 50-year precedent for judging Establishment Clause disputes, the Lemon Test, which Justice Neil Gorsuch claimed had “invited chaos” in the law.  (In oral arguments earlier in the term, Justice Gorsuch had derided “the so-called separation of church and state.”)

The dismantling of Lemon came less than a week after the same block of justices overturned another 50-year precedent, Roe v. Wade.  Such unpre­cedented actions rightly deserve Justice Sonia Sotomayor’s charge that the conservative majority has “revolutionized” its own jurisprudence.

Justice Sotomayor’s dissenting opinions in Carson and Kennedy read like eulogies to separation of church and state.  Rather than respecting the complementary functions of the two Religion Clauses, which together protect religious freedom writ large, Sotomayor wrote in Carson, the conservative majority has “equat[ed] a State’s decision not to fund a religious organization with presumptively unconstitutional discrimination on the basis of religious status.”

She reiterated that concern in Kennedy: “The Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in our society.”  But now, the “Court’s increasingly expansive view of the Free Exercise Clause risks swallowing the space between the Religion Clauses that once permit[ted] religious exercise to exist without sponsorship and without interference.” Not mincing words, she concluded that the court’s revisionist holdings “lead us to a place where separation of church and state becomes a constitutional violation.”

This is a dire and depressing prediction.  But as someone who has written about and advocated for church-state separation for more than 30 years, I believe all is not lost.  The question is how to move forward.

The first thing to do is not to accept the rhetorical claims of Justices Gorsuch, Thomas, Alito and their allies that separation of church and state is a false, ahistorical and anti-religious principle.  If anything is ahistorical, it is their revisionist narrative.  Critics have condemned church-state separation since the modern Supreme Court first embraced it in 1947 (unanimously!), but that attack has intensified over the past two decades led by conservative legal groups, reactionary politicians like U.S. Rep. Lauren Boebert (R-Colo.), popular “historians” such as Christian nationalist David Barton, and even legitimate scholars including Philip Hamburger and Daniel Dreisbach.

As I document in my latest book, Separating Church and State: A History, however, the bona fides of church-state separation extend back to the Protestant Reformation and the Enlightenment. Church theologians and political theorists wrote not only about separate powers and spheres of authority of the two entities, but of maintaining barriers, lines or walls between the two.

Roger Williams was not the only figure to discuss church-state separation – he was joined by Anglican apologist Richard Hooker, Enlightenment philosopher John Locke and Whig pamphleteer James Burgh, among others. While all members of the founding generation may not have shared Thomas Jefferson’s and James Madison’s broad vision of the concept, it was still a widely shared idea.

A similar lack of consensus over the meaning of other constitutional principles – e.g., separation of powers – does not mean those principles are invalid.  (And, oh by the way, separation of powers is not listed verbatim in the Constitution, either.)

The second thing to do is to dispute arguments that church-state separation is antireligious. To be sure, separation ensures the secularity of public policy by restricting religious influences on government action and the religious motivations of government actors. But church-state separation also keeps the government out of the internal affairs of religious institutions, protecting the latter’s independence and integrity. It buttresses the voluntary support of religion and ensures a healthy competition among religions on a neutral playing field.  Despite recent downward trends, religious affiliation and church attendance is still significantly higher in the United States than in other westernized democracies.  People of faith have church-state separation to thank for that.

The third thing is to highlight the threats presented by the court’s recent decisions without being hyperbolic. That said, the court’s overly expansive interpretation of free exercise burdens and of discrimination against religion truly threatens to “swallow” up not only the values that nonestablishment protects but also salutary public policy. Should business owners – whether separately incorporated or not – be able to insulate themselves from complying with important nondiscrimination laws or providing necessary health care coverage for employees because they claim they might be “complicit” in conduct they abhor?

Are government social service agencies now unable to require their private contractors to serve members of the LGBTQ+ community, even though the government funds those programs? If a football coach can pray on the football field while on duty with student players present, what is to prevent a classroom teacher making the same claim of privilege in a classroom full of students who are taking a test? And what if the teacher’s faith requires her to pray audibly rather than silently? And can school districts now no longer reject applications for charter schools because their organizers intend to use a religiously based curriculum?  More Americans need to be made aware of the implications of the high court’s “revolutionized” church-state jurisprudence.

One thing to keep in mind is that Americans still overwhelmingly support the idea of church-state separation.  A recent survey by Pew Forum indicates that almost three quarters of people (73%) support church-state separation as a concept with most agreeing on its major applications, such as ensuring that government policy reflects secular goals, that houses of worship not engage in political activity and that teachers not engage in religious activity in the classroom or with students. Although there are greater differences about other issues – such as religious displays on government property – there is a fair degree of common ground that is shared by even some religious conservatives.  According to Pew Forum, only 20% of Americans support a church-state “integrationist” perspective. There is room for discussion among people acting in good faith.

Two final suggestions about moving forward. The first is not to become despondent in response to the current Supreme Court. Granted, some of the younger conservative members of the court and the federal judiciary will be on the bench for another 30 years. But separationists need to adopt the same approach as the anti-separationists who have persisted for decades to achieve their goals.  Persistence is key. That means at all levels of government – before school boards, city councils, legislative committees – and with organizing fellow members of your community.

As Dr. Martin Luther King Jr. reminded us, “The arc of the moral universe is long, but it bends toward justice.” Change takes time, and it only comes about through hard work.

The second suggestion is simply, “vote!”  We are all experiencing the consequences the 2016 election; had 75,000 of Hillary Clinton’s 3 million vote majority been distributed differently among a handful of states, we would not be having this discussion. Voting matters that much.

Steven K. Green is Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Stud­­ies at Willa­mette University in Oregon, where he teaches courses in Constitutional Law, First Amendment, Legal History, Jurisprudence, Education Law and Criminal Law in the College of Law, and Legal History and American Religious History. He also directs the interdisciplinary Center for Religion, Law and Democracy, one of Will­amette’s Centers of Excellence. He is the author of several books on church-state relations.                                          

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