I was raised by a “Roger Williams” Baptist.

My father was a staunch believer in the separation of church and state. He passed that gene along to me. When a friend recently loaned me a book on the topic by a scholar of religion and the law, I was intrigued. It is important to note that I am not a lawyer and a full understanding of all the legal issues at play here is beyond my area of expertise. However, I came away from reading this work with impressions to help flesh out my understanding of our difficulties in maintaining true religious freedom in the context of the church-state relationship in America.

Church State Corporation: Construing Religion in US Law (2020) by Winnifred Fallers Sullivan takes a deep dive into several Supreme Court decisions and other legal texts to argue that “American law has shown that it cannot think religion without the church — that the space for religion in the U.S. law is a church-shaped space.” This, in spite of the fact that there is no mention of church or churches in the Constitution. This is more important than I realized, as the Supreme Court — especially under Chief Justice John Roberts — has favored “the Church” over individuals with religious beliefs. Sullivan asks, “is it constitutional for the U.S. Supreme Court to use the definite article in referring to church?” This bias towards “the Church” is carried even further in that the decisions by the Roberts Court to preference corporations over individuals in a variety of areas of law extends to the corporations that are also churches.

One enduring challenge, writes Sullivan . . .

. . . has been whether and how the religious exercise of groups or organizations, rather than just that of individuals, is given special constitutional protection. Religion is said to be disestablished — but what exactly does that mean? . . . This book tries to think through the terms of this challenge by focusing on the church-in-law . . . as one corporate body among others, but one that has had a surprisingly specific endurance in the American legal imagination.

I was not surprised to read that this particular court has a rather loose interpretation of the history on this question, with the Chief Justice taking center stage in one opinion by cherry picking writings of James Madison.

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, decided in 2012 in a unanimous opinion (!) written by Chief Justice Roberts, the Supreme Court agrees with the church’s rather remarkable claim “that a federal district court lacked the authority to hear a federal employment discrimination suit with respect to the employment relationship between a corporation created by state law and one of its employees.”

How does Roberts get there? By going all the way back to 1215 and the struggle between popes and kings over the selection of bishops. When he writes that “the Church” has the power to choose its own ministers, he would have us believe that the church — which has no standing in the Constitution and whose relationship to the state in medieval times was rejected by the founding fathers — now has the right to break federal laws about discrimination as a protected class of corporation. Also, he inaccurately interprets James Madison’s presidential veto of a Congressionally approved bill incorporating the Protestant Episcopal Church in Alexandria to support his opinion. Madison, as Sullivan points out, saw church governance as existing wholly apart from civil law. Roberts, on the other hand, is fine with churches being corporations — and even corporations with special liberties — because the Chief Justice has never seen a corporation he didn’t like (and privileged above individual citizens).

The problem with churches that cannot be controlled — even as they stand as corporations with special privileges and federal tax benefits — comes out in other ways, especially around how the ownership of property and what, exactly, makes up the church. When a local congregation splits in two and opposing sides go to court to control “their” property, courts have to decide which one is “the church” and thus gets the building (and gets to choose its ministers) and which side is not “the church” and gets neither property nor the right to choose its own minister. You can see the slippery slope we’re on with the incorporation and privileging of churches.

The famous Burwell v. Hobby Lobby decision was an especially hot mess, where a for-profit business corporation set up under U.S. law gets to play church. Sullivan quotes Bethany Moreton, author of To Serve God and Wal-Mart: The Making of Christian Free Enterprise, who wrote, “The corporation entered the twentieth century as an immortal super-citizen.” Roberts and this Supreme Court granted that immortality to Hobby Lobby, a for-profit corporation, “giving preference to the corporation’s views on contraception over that of the employees.”

So much of this issue boils down, in my mind, to the fact that conservatives on the court too often rule as if they only want to protect one particular set of religious interests: those of other conservative Christians. There is less support for the rights of the progressive person of faith who favors equality because it aligns with their religious beliefs, or for other non-Christian religions. And if your views are decidedly nonreligious, you may have trouble breaking into the conversation. 

In Church State Corporation, Sullivan also delves into disputes over the legal exploitation of the black church in the criminal justice system and the recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. I found this scholarly work a tour de force, as Sullivan makes the strong case that the Court “has misinterpreted the separation of church and state to mean that the state must cede sovereignty to any corporate body claiming exemption from generally applicable laws for reasons of faith.”  Some reviewers complained that the book raised more questions than it answered, but I actually saw that as a strength. We have a Supreme Court that seems all too willing to put forth answers . . . even when it is clear the justices have not considered the relevant questions. Not having answers for every question shows a curious mind at work.

More to come . . .

DJB

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Image of U.S. Supreme Court from Pixabay.