Religious Freedom Commentary

By George Kane

Each year the President of the United States proclaims National Religious Freedom Day to commemorate the enactment of the Virginia Statute for Religious Freedom on January 16, 1786. That statute, written by Thomas Jefferson and guided to passage in the Virginia General Assembly by James Madison, became the model for religious freedom laws when the United States was founded.

That act requires “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.”  While the idea that the individual should never be forced through taxation to support a religion in which he did not believe had been gestating throughout the Enlightenment, this statute for the first time enshrined that principle in law.

Religious freedom has been expanded since by the adoption of the First Amendment and by new laws, adopted nationally and in every state, and clarified by court decisions.  Especially important in this regard are tests that have been employed to determine if a law violates the Establishment or Free Exercise clauses of the First Amendment.  The coercion test holds that government does not violate the establishment clause unless it (1) provides direct aid to religion in a way that would tend to establish a state church, or (2) coerces people to support or participate in religion against their will.  The endorsement test holds that a government action is invalid if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.  The three-pronged Lemon test requires government action to have a secular purpose, a primary effect that neither advances nor inhibits religion, and avoids “excessive entanglement” of the government and religion.

Each of these tests for First Amendment violations was viewed as expanding and reinforcing religious liberty.  None of them rolled back Jefferson’s concept that government may not through taxation compel anyone to support any religion.  Thirty eight states have enshrined this prohibition into their own constitutions.  Unfortunately, the conservative majority on the Roberts court has undertaken a long-term project to undermine these no-aid-to-religion laws in successive rulings.  In the case Trinity Lutheran Church v. Comer, the court ruled that churches may receive state subsidies that do not involve teaching religion.  In the case Espinoza v. Montana Department of Revenue, the court ruled that pervasively religious education may be subsidized, even if forbidden by the state constitution.  In this term’s Carson v. Makin case, the Supreme Court is expected to rule that denying state subsidies for religious organizations violates the free exercise clause of the First Amendment.

If the court decides in favor of the plaintiffs, it will have the effect of overturning the Virginia Statute for Religious Freedom on the surprising argument that it restricts the freedom of religion!  This would turn the 236-year-old understanding of religious freedom completely on its head.  In Jefferson’s concept of religious freedom, the state could not compel anyone to financially support a church.  But the Roberts court has found in the Constitution’s Free Exercise Clause that, if subsidies are offered to secular organizations, states must provide the same support to churches!  Of course, the taxpayers will have to come up with the money.  This maintains government “neutrality,” the court argues, because it makes government support equally available to religious and secular organizations.  But since over 90% of religious K-12 schools in the United States are Christian, school voucher programs are hardly neutral among religions.

Before our eyes, freedom of religion is being redefined as an entitlement of churches to government benefits.  This violates every test the court has previously developed of an Establishment Clause violation.  Government support would in the future be provided to any established church, coerced by taxation.  Reasonable observers will see it as an endorsement of religions receiving subsidies.  Benefits are intended to help the recipients, which is a religious purpose when the recipients are churches.  Its effect will benefit the recipients and entangle the government in the funding of religion.

The funding a religion deserves is whatever its supporters choose to give it.