Symposium: Ban on state funding of churches protects independence

Hollyn Hollman is the general counsel and associate executive director of the Baptist Joint Committee for Religious Liberty, which filed an amicus brief in support of the state of Missouri. She is an adjunct professor of law at the Georgetown University Law Center, where she co-teaches the Church-State Law Seminar.

Religious liberty in the American legal tradition is protected in a specific way. The principles of “no establishment” and free exercise stem from the experience of the Founding Era as reflected in the U.S. Constitution and state constitutions. Religious dissenters led the fight to separate the institutions of church and state and break free from tax support for churches. While free exercise keeps the state from interfering in religious practice, “no establishment” ensures independence of religion from the state.

Just twelve years ago, in Locke v. Davey, the Supreme Court rejected, by a vote of seven to two, a claim that a state program designed consistent with the state constitution’s “no aid to religion” provision amounted to unconstitutional discrimination against religion. In an opinion by Chief Justice William Rehnquist, the Court (1) affirmed a model of federalism that supports deference to states in matters of religious liberty; (2) recounted the historical and “hardly novel” arguments that undergird the state interest in not funding religious instruction; and (3) distinguished state avoidance of funding, which was found to have a minimal impact on religion, from state actions that would interfere with religious exercise.

Trinity Lutheran of Columbia v. Pauley fits squarely within the rule of Locke, and – if anything – is an easier case. In Locke, the Court rejected a challenge to the state of Washington’s college scholarship program that excluded from eligibility students who majored in devotional theology. The exclusion was based on Washington’s constitution, which prohibits public money from being applied to “religious worship, exercise or instruction.” The Court upheld the exclusion as a matter of state policy even though it stated that the exclusion was not necessary to avoid a violation of the federal Establishment Clause.

Unlike Washington’s scholarship program, which was widely available to any student who met its merit and need-based criteria, Missouri’s scrap tire grant program is a limited, competitive program awarding only a handful of grants each year for playground resurfacing. Missouri’s program is subject to a strict monetary cap. As a result, qualified secular playgrounds are denied grants each year. The Missouri program was designed in accordance with the state’s prohibition against funding churches, which are not eligible to apply for these grants. The program provides no incentive that would affect a church’s decisions regarding the use of its property.

Missouri’s interest in not funding houses of worship is just as historic and compelling as Washington’s interest in not funding ministerial training. On at least three fronts, Trinity Lutheran’s attempts to narrow the scope of Chief Justice Rehnquist’s opinion in Locke and to cast Missouri’s exclusion of churches from its scrap tire program as unconstitutional discrimination against religion are simply not persuasive.

Federalism

Even those with a narrow view of the Establishment Clause typically admit that there is some religious activity the government cannot directly fund under the U.S. Constitution. Locke instructs that states have the discretion to draw their own lines on funding for valid reasons, such as avoiding the funding of ministerial training and churches, consistent with longstanding constitutional provisions. States may erect a higher barrier to public funding of religion than the Establishment Clause without violating the Free Exercise Clause. When, as here, the state’s interest is historic and substantial, and does not interfere with religious practice, it is entitled to deference.

Missouri has always provided greater “no establishment” protections than the U.S. Constitution. When Missouri entered the union in 1821, article XIII, section 4 of its very first constitution prohibited the state from compelling anyone to erect or support a place of worship. This provision has been in each successive state constitution and remains, virtually unchanged, in article I, section 6. A similar provision to not compel support for houses of worship was found in Virginia’s landmark religious liberty statute, Thomas Jefferson’s “A Bill for Establishing Religious Freedom,” as well as the state constitutions of at least thirteen of the twenty-three states that joined the union before Missouri, namely: Alabama, Connecticut, Delaware, Georgia, Illinois, Indiana, Kentucky, New Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, and Vermont.

In addition to this “no compel” provision, the Missouri constitution has two other no-aid provisions. Article IX, section 8 first appeared in 1870 and directs that no state or local government may expend taxpayer money “in aid of any religious creed, church or sectarian purpose.” Article I, section 7 dates to 1875 and provides “[t]hat no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church.”

Missouri’s three constitutional no-aid provisions have been consistently interpreted together as increasing its citizens’ religious liberty protections. There is no historical evidence that Missouri’s no-aid clauses were the product of any anti-Catholic animus. The no-funding rule was a well-established part of Missouri’s constitution — and the constitutions of many other states — years before Representative James Blaine proposed his (unenacted) federal constitutional amendment. Moreover, Missouri’s no-funding rule always foreclosed direct subsidies to all churches in Missouri, most of which were (and are) attended by non-Catholics. Missouri’s three constitutional no-aid clauses complement one another, covering aid to churches separate and apart from aid to religious schools or to clergy.

Thirty-nine states today have constitutional provisions which prevent the state from funding houses of worship. Missouri’s three no-aid provisions require that it not finance a church’s capital improvement project.

Religious fight for disestablishment

Churches have been a vital part of U.S. society from colonial days. Churches were seen as providing a public good by teaching and instilling morality in the populace during the colonial era, and it was common for government to provide financial support for clergy and houses of worship. This financial support was at the very core of what it meant to be an “established” church.

The move toward disestablishment was led by colonial Baptists and other religious dissenters who suffered at the hands of the government under establishments of religion. Establishments eventually became seen as fundamentally at odds with the rights of conscience, religious equality, and individual religious freedom. Disentangling the institutions of religion and the state was a necessary first step to protect religious liberty. By the time the Bill of Rights was ratified, most states had disestablished their state churches. These battles to break free from the burden of tax support for churches were central to the development of the First Amendment and the U.S. legal tradition of religious liberty.

Disestablishment brought a new freedom for the institutional church by removing state financial support. Religious groups of all types would thrive or fail based upon their membership’s passion and engagement, and would not depend on currying favor with government officials. More than two hundred years later, disestablishment is a resounding success as religion thrives in the United States at far greater rates than in most other industrialized nations.

Minimal impact

In Locke, Chief Justice Rehnquist distinguished the state’s exclusion of ministerial studies from the scholarship program from a state measure intended to suppress religion — such as the municipal ordinance found unconstitutional in Church of Lukumi Babalu Aye v. City of Hialeah, which banned the ritualistic animal sacrifices of the Santeria religion. In Trinity Lutheran, as in Locke, “the State’s disfavor of religion (if it can be called that) is of a far milder kind” and does not impose a sanction or restriction on any type of religious service or practice.

Missouri is not preventing Trinity Lutheran Church from building, improving, or operating its facilities consistent with its religious calling. Nor does Missouri prevent the church from having a playground or preschool and operating them consistent with its ministry priorities and community outreach efforts. Churches may choose to insulate themselves and their property or to throw open the gates to all who would enter. Church-owned facilities are not readily segregated between religious and secular uses, and the state should not be involved in deciding when such property is sufficiently dedicated to the public use or separated from the church’s core religious expression.

Recasting Missouri’s constitutional commitment to greater “no establishment” protections than in the U.S. Constitution as constitutionally suspect, hostile, or discriminatory should be categorically rejected.

Posted in: Featured, Symposium before the oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Pauley

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