CHURCH & STATE | The Supreme Court Says You Can Be Forced to Support Religion

The United States enjoys separation of religion and government in large part because, during the colonial period, people simply got fed up over church taxes.

Forced support for religion was common in many of the original thirteen colonies. Several had officially established churches, which everyone had to support—whether they belonged to these churches or not.

A seminal moment occurred after the Revolutionary War as Virginia debated what to do about its officially established Anglican Church. Patrick Henry proposed shifting from a single established church to a broad system of church taxes. He wanted to prop up Christianity by requiring all state residents to pay a tax to support “teachers of the Christian religion.”

James Madison would have none of it. Madison understood that if it was wrong to compel a taxpayer to support a single official church, it only compounded the problem by forcing him to support dozens of them. Calling the Henry proposal “obnoxious on account of its dishonorable principle and dangerous tendency,” Madison fired back by anonymously penning a powerful broadside with a somewhat unwieldy title: the “Memorial and Remonstrance Against Religious Assessments.” It’s essentially a list of fifteen reasons why no one should have to pay a church tax. (Yep, it was an early listicle!)

Henry’s bill was defeated, and Madison took the principles of no forced support for religion with him during the debate over the First Amendment’s religion clauses, ensuring that the federal government would have no power to force citizens to pay taxes to support religion (a provision that was extended to the states after the Civil War).

This history is important and inspiring—but the US Supreme Court doesn’t care about it. In late June the court ruled 5-4 that if a state has a private school voucher plan, it must include religious schools. In essence, the court ruled that in certain cases, government is required to support religious institutions.

The Supreme Court’s ruling in Espinoza v. Montana Department of Revenue is nothing short of a disaster. Not only did the court turn its back on our history, it also trashed decades of church-state precedent in one swoop. In a 1947 case called Everson v. Board of Education, the high court unanimously endorsed what Thomas Jefferson called the “wall of separation between church and state” and made it clear that direct tax support of religion violated that wall. In 1971’s Lemon v. Kurtzman, the court laid down a three-part test for determining church-state violations that, if properly applied, would protect Americans from anything like a church tax.

The high court didn’t explicitly overrule these cases in Espinoza, but their core findings are impossible to square with that decision. Furthermore, the Espinoza ruling makes it harder for thirty-eight states to enforce provisions in their constitutions that explicitly bar tax aid for religion.

Chief Justice John G. Roberts, who wrote the opinion in Espinoza, ruled that no state is required to have a voucher plan. But if states have such programs, Roberts declared, they must include religious schools. This begs the question of what other types of taxpayer-funded initiatives religious groups can now demand to take part in. If a city has a program to spruce up run-down buildings, must it include houses of worship? If historic preservation funds are doled out to structures past a certain age, can churches, temples, synagogues, and mosques demand a cut?

The Supreme Court is clearly moving in this direction, and some legislators seem eager to push things along. The coronavirus relief bill passed earlier this year included a provision known as the Paycheck Protection Program (PPP) that was intended to help small businesses meet their payrolls during the economic downturn by giving them “loans” that would later be forgiven, thus making them grants. The Trump administration made certain that religious groups were allowed to participate in the PPP and, as a result, billions in public funding flowed into the coffers of houses of worship. The Catholic Church alone received $1.4 billion, a figure that helped offset the millions the church has had to pay the victims of pedophile priests. Remember, some of the church’s dioceses have had to declare bankruptcy due to pedophilia settlements. Thanks to PPP, we the taxpayers have helped bail them out.

From the perspective of religious leaders, things could not be any better. They are now guaranteed access to tax money in certain cases with minimal or no oversight. Consider the private religious schools that are receiving a windfall thanks to vouchers. Unlike public schools, they can refuse admission to or expel students for any reason—students who are LGBTQ (or whose parents are) can be kicked out. Students can be refused admission to these schools for being the “wrong” religion, for failing to meet rigid moral codes, for challenging administration policies, and so on.

Is there a remedy to all of this? Yes, but it’s not an easy one. We need to start rebuilding the church-state wall brick by brick. That means paying attention to federal courts and highlighting the issue of federal judges and how they get their jobs. We’re in this situation because of years of conservative judicial appointments.

We must stop passing school voucher programs and start rolling back existing ones. Americans support well-funded public schools, not privatization. They have made that clear at the ballot box over and over again, rejecting state referenda that would establish voucher plans. It’s time our lawmakers heard this message.

We also need accountability. If private schools are going to accept public funds, it’s time they were more tightly regulated to ensure that they operate in the public interest. We can begin by stripping them of their right to accept only the students they want, stopping them from forcing religion onto unwilling participants and requiring them to meet state curriculum requirements, specifically banning creationism in science classes. Private school officials who find these conditions onerous are free to retain their independence by not taking taxpayer money.

Finally, we need an appreciation of our history. The United States pioneered the separation of church and state and, as I mentioned at the beginning of this column, we did it mainly to free people from church taxes. The experiment was perhaps too successful. Living under a grand measure of religious freedom, Americans grew complacent and failed to push back when the courts began sneaking church taxes in through the back door.

That attitude must change. In his “Memorial and Remonstrance,” Madison warned Americans, “[I]t is proper to take alarm at the first experiment on our liberties.” The experiment is well under way, and the results don’t look good. It’s way past time to be alarmed.