seperation of church and state
The New York Times
About Paycheck Protection
The Paycheck Protection Program, to possibly oversimplify, is a forgivable loan issued through the Small Business Administration. It was part of the CARES Act, a response to the Covid-19 crisis. Both for-profit businesses and not-for-profits were eligible, including churches.
I covered that in this piece “For Some Churches, SBA’s Paycheck Protection Program Is Better Than Bingo” in response to the Southern Baptist Conferences ecstatic reaction to the program. I was wondering whether Catholic parishes might have trouble qualifying, because of the hierarchical governance model. According to this CBS News story by Christina Capatides, they figured something out.
The Constitutional Problem
At any rate, I recognized a potential constitutional problem, but Professor Tebbe et al. —I mean don’t get them started.
“We are witnessing an important moment in the nation’s constitutional history: the quiet demise of the already ailing separation of church and state.”
The piece goes on:
“Now the core constitutional rule against using taxpayer dollars to pay clergy is slipping away in face of the coronavirus crisis. That should give us pause. The obliteration by Congress and President Trump of a basic principle of separation is a significant development in American constitutional culture.”
The professors compare the program to one in New Jersey that the Supreme Court approved in 1947 that provided for transportation money for students attending religious schools.
“The New Jersey program, unlike the Paycheck Protection Program that helps congregations pay their clergy members, did not directly support a religious mission. It merely provided students attending public and religious schools equal access to affordable transportation.”
Churches Have Paychecks Too
I’m more of the mind that some mix of federal, state and local government shut down the butchers, the bakers and the candlestick makers and Congress did something to protect their paychecks. They also shut down churches. Protect those paychecks too.
Now of course, I am not a law professor, so what do I know? But my decade of following the fight over the constitutionality of the exclusion of cash housing allowances of clergy has introduced me to a couple of law professors who focus on church state separation and free exercise issues.
Not As Clear As They Say
I heard from Professor Samuel Brunson, George Reithal Professor of Law at Loyola University Chicago. He is the author of God And The IRS: Accommodating Religious Practice in United States Tax, which among other things covered Kent Hovind and the parsonage controversy. He wrote me:
“I think they raise some important points, though I don’t think it’s as clear as they lay it out. That is, they argue that the New Jersey case is distinguishable from the PPP because under PPP the government is directly paying clergy salaries, whereas the transportation funding in New Jersey was wholly separate from religious practices.
That’s true insofar as we ignore the fungibility of money. And the Supreme Court notoriously ignores the fungibility of money. But honestly, to the extent a religious school doesn’t have to pay for transportation (because the state government is paying for it), that leaves it more money that it can use to fund its religious mission.
That’s not perfectly analogous to PPP loans, of course. They’re more explicitly tied to the payment of clergy salaries. But like transportation, the loans are for a specifically secular purpose: to ensure that people keep their jobs. That both relieves the government of paying unemployment and helps the economy by ensuring that people continue to consume. (It’s fair to ask whether lack of means for consumption was really the economic issue we were facing, but that’s what the PPP kind of assumes.) That someone is clergy doesn’t mean that she’s not consuming, or that her consumption is inherently different from non-clergy consumption.
Ultimately, I agree with the authors that using the PPP to support clergy salaries is troubling. But I don’t think the troubling nature is as clear or clean as they lay out; I think it’s a really hard question that underscores both the tension between the Establishment and Free Exercise clauses of the Constitution and that lays bare the economic illiteracy that infects our First Amendment jurisprudence and makes it harder to articulate what’s wrong with a particular program.”
Range Of Constitutionally Permitted Relationships
I also heard from Professor Edward Zelinsky. He is the Morris and Annie Trachman Professor of Law at the Cardozo Law School of Yeshiva University and the author of Taxing the Church: Religion, Exemptions, Entanglement and the Constitution.
He wrote me:
“Professors Tebbe, Schwartzman and Schragger decry the church-state entanglement caused by PPP loans to churches and other religious institutions. However, in this kind of setting, there is no approach which does not involve such entanglement. Broad-based government programs create church-state entanglement whether religious groups are included in or excluded from such programs.
Where Professors Tebbe, Schwartzman and Schragger see a single acceptable approach to the relationship of the modern church and the modern government, it is often more compelling to see a range of constitutionally permitted relationships, each with its own trade-offs. That Congress authorized PPP loans for churches was a constitutionally permitted, though not a constitutionally compelled, choice.
The First Amendment would have permitted Congress to deny religious entities PPP loans. But that choice would have engendered church-state entanglement also.
Suppose, for example, that Congress had foreclosed PPP loans to religious institutions. There is no more entangling enterprise than drawing the line between religious and nonreligious institutions. Is my local YMCA or JCC a religious entity? Or is it sufficiently dominated by its health club activities that it is functionally indistinguishable from the commercial gym next door?
Or suppose that, in wake of civil disturbances, a municipality gives grants to repair damaged store fronts. In many urban neighborhoods, some of those store fronts will be entrances to churches. Would Professors Schwartman and Schragger deny municipal assistance to repair these church store fronts while every neighboring store front receives municipal aid?
There are cases where I assume the professors would agree that churches may receive public services. I suspect that they do not object when local police or fire departments respond to problems at church buildings. By the same token, one could envision public policies so targeted at religious institutions that no plausible First Amendment justification can be proferred for them. There would, for example, be no tenable constitutional defense if Congress adopted a program exclusively subsidizing clerical salaries.
But in between these kind of examples, there is, as Chief Justice Burger said in Walz v. Tax Commissioner, “play in the joints” of the First Amendment. That Congress authorized PPP loans for churches was a constitutionally permitted, though not a constitutionally compelled, choice.”
Professor Brunson and Zelinsky differed on the constitutionality of tax-free cash housing allowances for clergy. They agreed however that it was bad tax policy.
Other Coverage
The Catholic League For Religious and Civil Rights reacted with Critics Object To Religious Liberty Gains. It provides an interesting detail:
“The 1947 Supreme Court decision, Everson v. Board of Education, was a controversial 5-4 ruling that applied the establishment clause to the states—this was unprecedented—holding that public funds could be spent on public transportation in New Jersey for private religious schools (almost all were Catholic), but not much more. Writing for the majority was Justice Hugo Black, a former member of the Ku Klux Klan who openly expressed his hatred for Catholicism. The erudite professors failed to mention this inconvenient fact.”
Since Hugo Black was a long serving justice (1937 to 1971), I could see why having to mention that every time one of his decisions came up might get a little tedious.
