A conservative federal judge in Kentucky, Justin Walker, went so far as to say that “on Holy Thursday” the mayor of Louisville had “criminalized the communal celebration of Easter” — because he had discouraged large social gatherings, including at churches. And in another Kentucky case, a federal court of appeals has granted a religious exemption allowing in-person church services.
At the same time, however, houses of worship have received hundreds of millions, and perhaps billions, of dollars in federal funding under the Paycheck Protection Program of the Cares Act (the main coronavirus stimulus legislation). This program treats churches like any other business or nonprofit employer that needs funds to continue to pay its employees’ salaries. Some 9,000 Catholic churches have had their applications for federal funding approved, according to CBS News reporting, and a survey by LifeWay Research found that 40 percent of Protestant churches had applied (and 59 percent of those applications were accepted). As a result, for the first time in our nation’s history, the federal government is affirmatively subsidizing the salaries of clergy across the country.
These two striking developments reveal the confused state of our constitutional rules regarding the relationship between government and religion. On the one hand, churches argue that the free exercise clause of the First Amendment entitles them to special exemptions from stay-at-home orders. On the other hand, they also assert that churches can and must be treated just like nonreligious organizations when it comes to taxpayer funding. They rely implicitly on a 2017 decision, Trinity Lutheran v. Comer, in which the Supreme Court rejected Missouri’s exclusion of churches from a program to resurface school playgrounds.
Trump administration officials have embraced both of these arguments vigorously. It is not clear whether either holds up under current law — and, what’s more, they are in tension with each other. They do, however, make sense as part of a political program to advance religion.
Some stay-at-home orders issued by state governors are neutral as to religion, meaning that they apply in the same way to everyone. And religious actors cannot win free exercise exemptions from neutral and generally applicable laws, under a 1990 Supreme Court decision, Employment Division v. Smith. (The court held that Native Americans who sought to use peyote in religious ceremonies had to respect a ban on the drug.) We have concerns about how Smith was decided, but under its central holding, houses of worship do not have a special constitutional right to a religious accommodation from neutral stay-at-home orders.
Congregations are nevertheless arguing that the free exercise clause is relevant because they are not being treated equally. In many places, certain “essential” businesses may stay open, though others, including houses of worship, must close. If stay-at-home orders do not apply to some secular organizations — liquor stores have become the stock example, though hospitals and grocery stores have been deemed essential, too — then religious groups must also receive exemptions.
Yet it is hard to believe that the state officials who have ordered citizens to stay at home are singling out religious practices for discrimination — and it is especially unpersuasive in relatively conservative states such as Kentucky, Kansas, Mississippi and Tennessee, where some of these disputes have erupted.
Instead, officials have made local policy judgments that, for instance, grocery and liquor stores are not intended as gathering places, unlike houses of worship. They also present evidence that religious gatherings, such as schools and sports arenas, pose higher risks of spreading the coronavirus. There are all too many tragic examples in which churches have served as vectors of infection. And to the degree that there really does seem to be unfairness — if officials permit drive-in movie theaters that practice social distancing but prohibit drive-in churches that do the same thing — policymakers act properly by removing the disparity.
Many church claims, however, are better understood as pleas for special consideration, not equal treatment. When Rob McCoy, the pastor of Godspeak Cavalry Chapel in California, for example, argues that his religious services must be treated as essential, he is claiming that churches cannot be treated like schools, civic organizations and other gathering places (about which government is free to make public-health-based policy decisions). This perspective now has the strong backing of the Trump administration and some religious legal thinkers.
That line of argument stands in stark contrast to the parallel argument that churches are not special when it comes to receiving federal aid under the Paycheck Protection Program. Note that the terms of that program go beyond those in Trinity Lutheran v. Comer, the crucial 2017 case. In that instance, the money went toward a nonreligious expense: resurfacing a playground. But using tax dollars to pay clergy salaries takes concerns about the use of federal money to a new level.
The Establishment clause of the First Amendment has long been understood to stand against direct tax aid for churches. In an essay often cited as providing the clearest evidence of the clause’s original meaning, James Madison famously opposed a 1784 Virginia plan to fund clergy salaries with tax dollars. “Who does not see,” he wrote, that “the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?” Madison thought the plan unconstitutional even though it allowed taxpayers to choose the faith that would be receive their tax contributions, and even though it exempted minority sects that would have objected to the scheme.
Today, the Cares Act involves a lot more than “three pence only.” Nothing in our nation’s history even approximates the scope and scale of the act’s direct funding of core religious activities. Yet administration officials and conservative groups are contending that the program does not violate the establishment clause. In fact, failing to include them would violate the free exercise clause, they say.
But as some religious leaders advance their interests, even at the risk of undermining public health regulations, it is the Supreme Court that has allowed this contradictory set of principles to coexist.
The tension between these two positions dissolves at the level of conservative politics — including conservative legal politics. This is not a constitutional vision, or policy vision, that promotes religious neutrality. Rather, it’s one that promotes the interests of religious actors, and particularly those of religious majorities that are spearheading these political mobilizations during a time of national crisis.
Congress should weigh carefully the Establishment Clause implications of further extensions of the Cares Act. At the very least, if religious groups receive public support, they should also abide by neutral and generally applicable rules — especially when those rules were designed to protect the health of taxpayers who are supporting them.