The U.S. Supreme Court (by Joe Ravi via Wikimedia – CC-BY-SA 3.0)
Other than the Fourth Amendment’s guarantee against unreasonable government searches, I would argue no other constitutional guarantee is more abused or more intentionally distorted in the modern era than the First Amendment’s Establishment Clause. Before I get to how the Guadalupe School case can help stem this abuse and distortion and hopefully re-establish the value of a functional Establishment Clause, we should delve into the background and current context of the guarantee itself.
When our Constitutional framework of religious liberty was first being put into practice, its primary author was clear the purpose was to bring about a “restoration” of religion’s primitive state where its “Teachers depended on the voluntary rewards of their flocks” instead of civil government. Despite this clear prohibition against utilizing civil support for religion (that now applies to the states as well), evidence demonstrates that many of today’s religious institutions have become primarily or substantially dependent on government funds for their operating budgets. Not only is this amount of direct funding of religious organizations by our government an insult to our rule of law, it also represents a direct threat to social stability.
As churches have become more operationally dependent on government support, their functions are increasingly being viewed as extensions of politics, rather than spiritual works. Making matters worse, we have a current president who portrays shifts in the political order as violent threats to religion. One of the main purposes of the Establishment Clause (i.e., the separation of church and state), was to prevent such religious strife. When independent operational separation exists, shifts in the political order can never pose any form of threat. Unfortunately, due to a modern campaign of distortion, the separation of church and state is regularly being represented as a form of hostility, instead of a liberty.
When it comes to educational funding, for example, the argument has been made that any government scheme that distributes taxpayer money to government-run secular schools only and that prohibits funding of any private schools (including religious schools), is being hostile to religion. In defending this argument David French asks: “If the government can’t prefer one religion over another, why can it prefer secular schools over religious schools? Why can it prefer irreligion over religion? Does the Establishment Clause permit state hostility against religion?” As it is with most legal arguments, framing is everything. And the fundamental error in this line of questioning is that it frames government separation from religious education as an extension of hostility, instead of a liberty. Indeed, the mistake in such a framing becomes abundantly clear when you apply it to the Guadalupe School case.
As the amicus signed by this country’s most prominent church and state scholars points out, at the heart of the Guadalupe School case is “the autonomy of religious organizations to select those who perform significant religious functions, including religion teachers and others who help transmit the faith.” In other words, the case is about the government being prohibited from interfering with how churches select teachers of their faith. This prohibition against government interference with religious instruction was labeled by the Supreme Court as the “ministerial exception,” but I would argue this title is fundamentally misleading. Put simply, by staying out of the affairs of religious instruction, the government is not granting any particular “exception” but is upholding the principle enshrined in the Establishment Clause that government and religion exist in a state of separation. Thankfully it appears as though the Court itself is likely going to abandon this misleading title of “exception.”
If you were to apply French’s framing to the Guadalupe School case, however, exempting private religious education employers from certain employment laws but not government “secular” employers would constitute a hostile act against the secular government employer. Think about it, if the Guadalupe School wins government school teachers would have the protection of certain employment laws while private religious school teachers would not. How could such differential treatment under the law — based solely on religious makeup — be considered fair or equal?
The difference only becomes a liberty once you view it through the framework of the First Amendment’s prohibition against government involving itself with religion. Such differential treatment is in fact necessary as it would be functionally impossible to maintain church and state separation unless government treated its secular schools in many ways differently from religious schools. In other words, labeling such differentials as hostile per se undermines the broader liberty of religious autonomy. The good news is, when it comes to the Guadalupe School case at least, the Supreme Court is virtually certain to extend separation liberty. The devil (pun intended) is in the vitally important details of such extension.
My hope is that in extending the principles at the heart of the Guadalupe School case, the justices, many of whom have viewed church and state separation as inherently hostile in the past, can be forced to recognize its inherent value. Unfortunately, it is more likely that we will see multiple justices paradoxically declare this term that religious liberty somehow means government is both commanded to stay out of the affairs of religious education while at the same time existing under an obligation to fund it. If this paradoxical and theocratic view of religious liberty wins the day, the increasing social hostility we are currently seeing, and in which our Constitutional structure of religious liberty was originally designed to prevent, will only increase.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.