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The Quiet Demise of the Separation of Church and State

 

The government is allowing federal pandemic aid to pay for clergy salaries, something that once would have been unthinkable.

 

By Nelson Tebbe, Micah Schwartzman and 

The writers are law professors.

  • June 8, 2020, 3:04 p.m. ET
  •  

 

The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This has long been thought to prohibit direct government support for religion. The contours of that idea have been contested, and they have contracted over time. But the commitment to some form of separation of church and state has endured.

 

Yet in response to the coronavirus pandemic, Congress has approved a huge payout to small businesses and nonprofits that allows funding for clergy salaries — a direct payment of tax dollars for a core religious use that would have been unthinkable in previous eras.

Thousands of churches applied for help under the Paycheck Protection Program, and many have had their funding approved. We are witnessing an important moment in the nation’s constitutional history: the quiet demise of the already ailing separation of church and state.

 

In 1785, James Madison, one of this nation’s founders and the chief architect of the Establishment Clause, argued against a Virginia bill that would have paid for clergy salaries with tax dollars, even though it would have supported a relatively wide range of denominations. Madison’s essay making that case was once widely thought to provide the best historical evidence for the meaning of the clause. He believed it was a violation of religious freedom to “force a citizen to contribute three pence only of his property for the support of any one establishment,” and he considered the payment of clergy salaries with tax dollars to be an establishment. Jefferson made much the same point in his religious freedom bill, which became the law in Virginia.

 

One hundred and sixty-two years later, in 1947, the Supreme Court evoked Madison’s essay in a seminal Establishment Clause decision, asserting that the “clause of the First Amendment means at least this:” That “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”

 

In that decision, the court actually upheld a New Jersey program that supported the transportation of students to all schools, including religious schools. But it emphasized that transportation services, like ordinary police and fire protection, were “so separate and so indisputably marked off from the religious function.”'

 

And that was the point: The New Jersey program, unlike the Paycheck Protection Program that helps congregations pay their clergy, did not directly support a religious mission. It merely provided students attending public and religious schools equal access to affordable

transportation.

 

More:

https://www.nytimes.com/2020/06/08/opinion/us-constitution-church-state.html

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