A Lesson in the Separation of Church and State
When your model of the world continually leaves you blind-sided, it's time to update your model.
Most Americans feel very strongly about the religious bits in the First Amendment. The political Left tends to pound their fists about the Establishment Clause—“Congress shall pass no law respecting an establishment of religion.” They like to use the term ‘separation of church and state,’ a phrase coined by Thomas Jefferson about a decade after the Bill of Rights was ratified. This view cares a lot about the threat of government imposing religious thought on a populace. In equal degrees, these adherents ignore the part about “prohibiting the free exercise thereof,” called the Free Exercise Clause.
Conversely, the political Right endlessly appeals to the Free Exercise while ignoring or explaining away the Establishment Clause. They are very sensitive to government infringement on their ability to openly practice their religion, but mostly insensitive to potential governmental endorsement of religion, especially their own.
Both clauses sit side-by-side in the brief, to-the-point 45 words comprising the text of the First Amendment. Where the Establishment Clause is concerned with the government favoring or endorsing a particular religion or religions, the Free Exercise clause is concerned with the opposite, that is, with the government disfavoring or actively impeding a particular religion or religions.
Frustratingly, most partisans today are only concerned with one or the other of these two pieces of the puzzle. And yet, it’s the interplay of the Establishment Clause and the Free Exercise Clause that strike a necessary delicate balance as part of the broader “freedom of consciousness” the First Amendment aspires to protect. The government is not the Pope, and it shouldn’t be in the business of decreeing any kind of canon.
This understanding of the First Amendment should be obvious on its face, but self-interested motivated reasoning is a powerful force, especially in today’s climate encouraging black-and-white, all-or-nothing reasoning. Complexity is dismissed as a dogwhistle. Views are designed as shibboleths, not earnestly calibrated to solve problems. But, as the Supreme Court decision in Carson v. Makin reminded me this week: when your views are insensitive to the inescapable feedback of reality, you are inevitably in for a rude awakening.1
What’s more, I immediately noticed an eerie familiarity in the clueless reaction on the Left. The Court in Carson held that Maine’s private school voucher program can’t exclude religious schools. Hadn’t I just gone through this already?
In the summer of 2017, I worked as a law clerk at the Freedom from Religion Foundation in Madison, Wisconsin. FFRF is, in their own words, an organization that “works as an umbrella for those who are free from religion and are committed to the cherished principle of separation of state and church.”2 FFRF is an unabashedly partisan organization. They are atheists—“freethinkers” in their parlance—who don’t like religion personally and advocate for its exclusion from the public sphere principally.
Thus, FFRF’s advocacy makes frequent appeals to the Establishment Clause of the First Amendment.
I had gripes with FFRF’s ideological blinders and motivation to ignore the Free Exercise Clause, but I spent my summer there because I recognized they do good and important work on Establishment Clause issues—something I found and still find to be vitally important to a free society.
During my summer at FFRF, a proverbial bombshell hit the office. In June 2017, the Supreme Court handed down its decision in Trinity Lutheran Church of Columbia, Inc. v. Comer.3 Trinity Lutheran implicated a Tennessee state law allocating funding for nonprofit organizations installing playground surfaces made from recycled tires. The agency responsible for doling out the funds, however, had an explicit policy of denying funds to any religious organization that applied.
Trinity Lutheran Church applied for funding to renovate its playground, was denied funding, and sued. The church argued that when you make funding generally available to nonprofits but then single out and exclude religious nonprofits (for funding that has nothing to do with religious activities), you violate the Free Exercise Clause.
In a 7-2 decision, the Supreme Court agreed.
This is where that previously-discussed interplay between the Establishment Clause and the Free Exercise Clause comes into play. If we were to pass a law earmarking funding either (a) targeted at religious organizations, or (b) for a religious purpose, that would be a clear signal of government endorsement of religion, implicating the Establishment Clause. Here, the target was nonprofits generally and the subject was renovating playgrounds—a fundamentally secular purpose. To single out and exclude religious nonprofits would be to disfavor those organizations in relation to secular nonprofits. Such signals of disfavor implicate the Free Exercise Clause.4
Virtually everyone in the office treated the decision as cataclysmic, unexpected, and the death knell of the separation of church and state. I found this reaction to be utterly bizarre because, quite simply, I thought the outcome was obvious, routine, and completely parsimonious with existing First Amendment law.
That experience at FFRF stuck with me. All week, morale was measurably down throughout the office. It took several days for the shock and confusion to wear off the staff there. The whole thing puzzled me because these people were paid to understand the First Amendment and there was no intelligent explanation for their headless chicken routine. But there it was, clear as day.
Granted, the media has fault in this. It is egregiously bad at reporting legal decisions. Headlines are routinely more broad-sweeping and grandiose than the narrower, more nuanced legal opinions they’re reporting on. But thinking adults have a responsibility to make sense of the world themselves, and we’ve been failing.
The Definition of an Insane Worldview
The mass hysteria provoked by the Supreme Court’s decision in Carson this week immediately evoked my experience at FFRF and the memory of Trinity Lutheran. Once again, a state had made public funding generally available for a secular purpose. Once again, that state had specifically singled out and excluded religious institutions from that funding, which had nothing to do with religious activities. And once again, the Supreme Court had ruled that exclusion was unconstitutional.
The two cases were only a few years apart. Worse, there was yet another intervening case with an identical holding, this time directly implicating secular and non-secular private schools. In 2020, Espinoza v. Montana Dept. of Revenue clarified that you cannot make funding available for students to attend private schools and then single out and exclude religious schools.5 Yet the political Left seemed to have learned nothing from Trinity Lutheran and Espinoza. Instead, they trotted out the same doomsaying arguments a third time: “The Supreme Court held that states are required to fund churches,” “the wall between church and state is being torn down,” etc.
In 2017, I tried to help my office mates see that they wouldn’t have been blind-sided by the opinion if they understood the factual nuance from a sober vantage point. I tried to explain that the decision does not erode the wall separating church and state, because the decision doesn’t compel any state to fund any church. It simply prohibits states from excluding churches that would otherwise qualify for funding allocated generally for a secular purpose. I tried again in 2020, when the Court handed down its decision in Espinoza.
Those arguments fell on deaf ears, and here we are again.
And so, I reiterate: the decision in Carson does not erode the wall separating church and state, because it doesn’t compel any state to fund any church. It simply prohibits states from excluding churches that would otherwise qualify for funding allocated for a secular purpose.
It is critical we learn from this. When your ideologically-motivated understanding of the world repeatedly leaves you blind-sided by events that others seemed to expect and soberly understand in context, you are being intellectually shackled and your ideology needs modification. Simply insisting, again and again, against the disconfirming feedback of reality, that your ideological understanding is correct, is the definition of insanity.
And even if you prioritize your ideological purpose above comprehensive understanding, refusing to understand this the first, second, and third time it hits you aside the head actually hurts your cause. Put simply, you are a more effective advocate when you understand base reality, when you don’t force an incorrect understanding of that reality upon yourself and your allies.
After being thrice blind-sided, I have to ask: why continue to shackle yourself with ideological insanity?
Help combat the problem. Don’t take disingenuous Twitter summaries as gospel. Read the full opinion at https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf.
For the intellectually curious, the full opinion is available at https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf.
There is a reasonable argument that the actual issue is a sort of “negative” Establishment Clause problem. That is, endorsing non-religious organizations over religious ones is an establishment of the absence of religion. This is not how the Supreme Court came to think of the problem. Instead, it’s framed as a Free Exercise issue, and that framing is adopted here.
Full opinion available at https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf.