Congressional lawmakers are debating a nearly $2 trillion relief bill as the coronavirus (COVID-19) continues its rapid spread around the globe.
As Congress gets closer to passing a relief bill, questions are emerging about aid provisions for religious groups, such as Christian colleges and universities.
Hugh Hewitt had Alliance Defending Freedom Vice President of Litigation and Senior Counsel David Cortman on his radio show to dissect whether such aid is constitutionally permissible.
Cortman noted that if a policy provides relief for privately operated, non-religious groups, it is also proper to provide that same relief for religious groups. In fact, if the policy fails to do so, that would be a violation of the Constitution—treating religious groups less favorably.
But some commentators will surely object to this—claiming that to give aid to Christian colleges violates the “wall of separation” between church and state.
Where Did the “Wall of Separation” Come From?
You likely recognize this phrase. It comes from a letter that Thomas Jefferson wrote to Connecticut’s Danbury Baptist Association in 1802:
… I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.
Jefferson’s metaphor was most famously used in Supreme Court jurisprudence in the case of Everson v. Board of Education of the Township of Ewing.
In Everson, an Ewing taxpayer challenged a New Jersey law that allowed local school boards to reimburse parents for the costs of getting their children to and from school. Because 96% of the private schools that benefitted from this law were Catholic schools, the taxpayer, Arch R. Everson, alleged that it violated both the New Jersey state constitution and the First Amendment.
Ultimately, the U.S. Supreme Court did not agree with Mr. Everson.
Writing for the majority, Justice Hugo Black quoted Jefferson, saying that the First Amendment’s “clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’” Later in the opinion, Justice Black wrote, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”
But in the majority’s eyes, the New Jersey law did not breach the metaphorical wall. Again, Justice Black said: “The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.”
While the justices reached the correct decision in Everson, Jefferson’s metaphorical wall continued to be utilized to exclude religious groups from participating in government benefit programs.
A Misused Metaphor
Heritage Foundation Scholar Daniel Dreisbach persuasively argues that Jefferson’s wall is “mythical” and “misused.” Dreisbach contends that Jefferson meant for this wall to describe how the First Amendment prohibits the federal government from establishing a federal church. Jefferson saw the “wall of separation” as protecting religious groups, not harming them. Yet, many have used this concept to put “faith communities behind a restrictive barrier.”
Since its inception, Alliance Defending Freedom has been fighting government discrimination against religion.
In 2017, we won Trinity Lutheran Church of Columbia, Inc. v. Comer at the U.S. Supreme Court. In his majority opinion for the Court, Chief Justice John Roberts scolded the State of Missouri for barring church-run schools from participating in a child-safety program that reimbursed schools for the cost of installing rubberized playground surfaces. The Chief Justice wrote that excluding Trinity Lutheran “solely because it is a church, is odious to our Constitution … and cannot stand.”
Yet, government hostility toward religious groups persists.
Our attorneys are currently litigating Bethel Ministries, Inc. v. Salmon. The State of Maryland removed Bethel Christian Academy from a school voucher program that benefits low-income families. Bethel fully complied with every aspect of the state’s program requirements. But Maryland officials allowed their hostility toward Bethel’s religious beliefs about marriage and sexuality to override the plain wording of their own program requirements, as well as the First Amendment’s guarantee that the government cannot discriminate against people simply because it disagrees with their religious views.
As you can see, the “wall of separation” continues to inspire discrimination against religious groups.
This will likely continue in the wake of coronavirus relief legislation. Activist groups hostile to religion will continue to press their version of the Establishment Clause and religious groups that desperately need the aid, such as Christian colleges and universities, will be tied up in needless litigation.
But Alliance Defending Freedom will be ready to protect them.