The liberal-progressive view looks, at first glance, sensible enough, but there are three problems with this framework.
The Supreme Court’s decisions in Espinoza v. Montana Dept. of Revenue and Our Lady of Guadalupe School v. Morrissey-Berru offered a one-two punch of victories for religious schools under the religion clauses of the First Amendment. Espinoza, a 5–4 decision written by Chief Justice John Roberts, protected the right of parents to use taxpayer-funded school choice for religious schools on the same basis as non-religious schools. Guadalupe, a 7–2 decision written by Justice Samuel Alito, protected the right of religious schools to control the hiring and firing of their religious teachers without interference from laws that govern teachers at non-religious schools.
Some critics see a contradiction. As one Above the Law columnist argued, “no sane reading of our religious liberty clauses supports the notion that government is both commanded to stay out of the affairs of religious schools while at the same time existing under the obligation to fund them.” In fact, what the two cases do is preserve a space for the free exercise of religion that actually takes religion seriously. There will always be tensions inherent in both the structure of the First Amendment and a society that extends religious pluralism to the religious and the non-religious alike. But the Court’s view is both philosophically consistent and firmly grounded in the history of the First Amendment.
The liberal-progressive view sounds, at first glance, sensible enough: In the public, government-funded sector, everything religious must be subordinated to avoid an establishment of religion or the large-scale obstruction of civil law; on your own time and your own dime, you can practice your faith. But there are three problems with this framework.
The first problem is religious: It is not enough simply to tell religious believers that they can participate in the government-funded sector in a non-religious way, and then just practice their faith on their own time. That’s just not how faith works. To the believer, the free exercise of religion is a pervasive thing — an identity, not just an idea. Being a follower of Christ, or a Muslim, is not something you can take on and off like a hat. Being put to the choice will frequently compel believers to turn down benefits available to everyone else. It is no answer to tell religious schools that they can be religious, but not too religious.
The second problem is political. As the government has grown and grown, it has become ever more difficult to maintain the fiction that the public, government-funded sector is the exception rather than the rule. The law has never actually required a “wall of separation” between church and state, and it has always been implicitly recognized that even if such a wall existed in theory, it could not be maintained in practice. Families can still pray together while walking on public streets. The fire department still comes when a church is on fire. A true wall of separation would divorce the state from its own citizens.
Decisions such as Espinoza simply recognize that, if religious believers are cut out of government-funded programs in a country where the government is ubiquitous, they are effectively placed at a disadvantage compared to the non-religious. A big chunk of our money goes to the government, then is sent back in the form of subsidies or carved out in the form of tax breaks; telling only religious believers that they may not use that money is not equality. Allowing them to use it in the same way they would have used it from their own pockets just restores the status quo. As for poor people who get more from the government than they pay in, allowing them to practice their faith on the government’s dime advances the purpose of policies designed to give the poor the same rights the rest of us enjoy.
The need to prevent an ever-expanding government from crowding out the space for religious practice is even more urgent in the case of laws and regulations, which, unlike subsidies, are not optional. The age- and disability-discrimination laws at issue in Guadalupe did not apply only to schools funded with taxpayer assistance. While the government has an undoubted interest in uniform enforcement of such laws, they will inevitably contract the space in which sincere religious believers and institutions can practice their faith unless some form of accommodation is found.
The third problem is legal: The free-exercise clause, unlike other equal-treatment provisions of the Constitution, is coupled with the establishment clause. The establishment clause restrains the government from affirmatively backing a church. It has grown over time, to a point well removed from its original understanding, into a broad prohibition on even fairly innocuous government endorsements of religion. A significant strain of establishment-clause jurisprudence prevents the government from even getting “entangled” with religion. But the core, original reason for the establishment clause was to prevent the government from bankrolling ministers.
Why does that matter in Espinoza and Guadalupe? Because both cases drew a line to keep the government’s hands off ministers. The Court in Espinoza distinguished Montana’s student scholarships from Locke v. Davey, a 2004 case that upheld a state decision to exclude the training of clergy from a scholarship program for professional training. Espinoza and Locke, read together, mean that states cannot discriminate against religious students taught by religious leaders, but they need not foot the bill for the training of those religious leaders themselves.
Guadalupe takes a similar stance toward keeping government away from religious leaders: Under the “ministerial exception” recognized unanimously by the Court in 2012, employment and other laws cannot interfere with a religious group’s choice of ministers. No matter how much government grows around a religious institution, its interest in deciding who leads the flock is essential to its identity. If the government can decide who the ministers are, it runs the church — the precise problem the establishment clause was written to prevent. This insider/outsider framework has parallels in the Court’s separation-of-powers jurisprudence, in which the Court polices the outer limits of executive and congressional powers but jealously guards each branch’s power to control its own internal affairs.
Of course, if you exempt ministers from some generally applicable laws, courts inevitably have to decide who qualifies as a minister. Justices Sonia Sotomayor and Ruth Bader Ginsburg objected to extending the definition of “minister” to Catholic-school teachers, who must lead their students in prayer and provide religious teaching and preparation for the sacraments but spend most of their time teaching secular subjects whose content is subject to state curricular regulation. Such a narrow definition of ministry, however, ignores the pervasive nature of religion in schools that still serve a secular purpose: A religious school is entitled to see teachers as models of the faith even when they are not teaching it. It is also the camel’s-nose-in-the-tent problem: If the existence of secular involvement or funding in some parts of the school limits the school’s freedom to choose some of its faculty, the school will be more expensive to operate and may have to compromise its faith as a result of government regulation.
Justice Clarence Thomas, by contrast, warned in Guadalupe that it would be dangerous for courts to ever inquire into who is a minister, so long as the religious group says they are. While his caution is well chosen, courts do routinely have to conduct limited inquiries in sensitive areas — i.e., determining when a foreign state can assert sovereign immunity, or when the government can invoke the state-secrets doctrine. A modest judicial role is more than sufficient to prevent religious institutions from insincerely abusing the claim that everyone is a minister. Alarmist claims aside, the combination of Guadalupe with Espinoza will not suddenly create an entire sector of government-funded institutions that do not need to obey general laws, because the exemption of ministers is likely to end up — as in Locke — being no broader than the class of people whose training the state can legitimately refuse to finance.
There is, in short, no contradiction between allowing religious institutions to participate in generally applicable government programs while still being religious institutions that control how they teach and practice their own faith. Any other outcome would offend one or both of the two values protected by the religion clauses: the equal rights of religious believers to exercise their faith, or the prohibition on the government controlling how churches are taught and led.
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