Why We Still Like Separation of Church and State


We believe in the separation of church and state because it requires religions to obey laws enacted by the state instead of allowing religions to hold everyone to their own religious laws.

This idea of separation is much disputed these days, as religions continue to gain more victories in the courts. The religious keep insisting they have a “right” to live by religion instead of the law. Whether it leads to theocracy or balkanization, the creeping fusion of church and state is disastrous for the public good.

Let’s be frank: religions need to obey the laws. No religion can provide a standard that governs everyone, religious and non-religious alike. Instead, the law is supposed to protect individuals from religion’s weaknesses and aggressions. The law provides a standard that protects everyone’s rights. We have worked to defend those civil rights and will continue to do so going forward. We believe that the legal doctrine erasing the barriers between church and state, and encouraging collusion between politicians and religions against the public good, has reached a tipping point that must be reversed now to avoid long term suffering and instability.

The following examples illustrate a few ways in which religions are undermining the public good as they demand a right to sidestep the law. There are thousands more.

Controversy 1: Child Sex Abuse

Religions have long abused children and then hidden that abuse from the courts and the people. The dogma is called something different in each faith, but, in the end, almost all religious organizations have an internal rule that a member is not permitted to put the faith in a bad light. That has meant children have been collateral damage as religious organizations hide the truth from the public. This stance has been exacerbated by their predilection to demand so-called “church autonomy” from neutral, generally applicable laws.

Prof. Hamilton has blown the whistle on the harm done to children (and others) by religion in her groundbreaking books, God vs. the Gavel: Religion and the Rule of Law (2007) and God vs. the Gavel: The Perils of Extreme Religious Liberty (2014). At the same time, she has focused attention on the arbitrary statutes of limitations (SOLs) that have favored religions and other organizations over victims in Justice Denied: What America Must Do to Protect Its Children (2008). Her organization, CHILD USA, continues the fight to reform SOLs to allow into court victims of abuse and to grow the civil rights of children, even against religions. Statutes of limitations typically block them from justice and give religions cover, which harms the public good. All the studies show that most child victims of sexual abuse do not reveal their abuse until well into adulthood. The lawsuits, along with some grand jury investigations, are needed to release the truth to the public, including to parents trying to protect their children.

Many states have forged ahead and passed legislation to free the victims from their unfairly short SOLs, but some lawmakers continue to kowtow to the Catholic bishops, the most prominent lobbyists against child sex abuse victims. Pennsylvania is an excellent example where the leader of the Pennsylvania Senate, Sen. Kim Ward, has carried a torch for the bishops and blocked legislation that would pass if permitted to go to the floor. Even though the state’s grand juries discovered that thousands of victims had been abused by hundreds of priests, the legislature has refused to open state courts for the victims. The “system is broken,” said one of the Pennsylvania abuse survivors. It will be broken until lawmakers and the courts are open to protecting victims instead of religious wrongdoers. The wrongdoers still use the courts to claim religious freedom immunizes them as they play hardball tactics with the victims they created. Their frequent arguments for “church autonomy,” a doctrine the Supreme Court has never embraced, are dangerous for the next generation of children, will keep parents in the dark, and are antithetical to the common good.

Controversy 2: The Attack on the Right to Equality in Medical Treatment

The Supreme Court recently denied certiorari in Minton v. Dignity Health, a case about a transgender patient at a Catholic hospital, the Mercy San Juan Medical Center in Carmichael, California. The patient, Evan Minton, is transgender, and a hysterectomy was denied after the Catholics found out Minton is transgender.

Minton sued Dignity Health under California law. Reversing the trial court, the California appeals court allowed Minton’s Unruh Civil Rights Act lawsuit to proceed. Minton claimed he was discriminated against on the basis of gender identity. Many transgender men receive safe and effective hysterectomies as a treatment for gender dysphoria, a situation where people’s “gender identity does not conform to the sex they were assigned at birth.” Minton’s doctors said the surgery was part of his standard medical care. Mercy told Minton his surgery was cancelled the day after Minton told a Mercy nurse that he was transgender.

The Catholic hospital sought to persuade the courts that the church’s Ethical and Religious Directives should determine who receives care. The trial court said there was no discrimination, because Minton later received his surgery at a non-Catholic Dignity Hospital. The appeals court, however, rejected that argument, explaining that the discrimination took place on the day the surgery was canceled. On that day, Minton was denied treatment in violation of the Unruh Act. It “cannot constitute full equality under the Act to cancel his procedure for a discriminatory purpose, wait to see if his doctor complains, and only then attempt to reschedule the procedure at a different hospital.”

The California court rejected Dignity’s argument that they were allowed to discriminate in the name of religious freedom. Citing earlier California Supreme Court cases, the court recognized “California’s compelling interest in ensuring full and equal access to medical treatment for all its residents, and that there are no less restrictive means available for the state to achieve that goal.”

Although a majority of the Court denied certiorari, Justices Thomas, Alito, and Gorsuch would have granted the petition for review. Presumably they would have overturned that ruling in the name of religious freedom. They often prefer religious freedom to duly enacted laws aimed at preventing harm. But we agree with the California court here that hospitals are required to obey state laws giving everyone a right to health care and that decisions about who can receive treatment cannot be made through a religious lens.

Controversy 3: The Ministerial Exception: Where Non-believers Are Magically Transformed into “Ministers”

Justices Thomas, Alito, and Gorsuch joined Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh in expanding the ministerial exception in 2020. Only Justices Ginsburg and Sotomayor dissented. The ministerial exception allegedly protects religious freedom by giving religious institutions the freedom to dismiss anyone they call a “minister,” without having to be bothered by the anti-discrimination laws. As the doctrine has played out, religious freedom has little to do with it. Employees are fired for all reasons, and then called “ministers” the day the employee files a lawsuit. If a religion calls someone a “minister,” they avoid court, whether they have discriminated against the employee on the basis of race, national origin, gender, sexual orientation, age, or health status, or for their whistleblowing against the employer’s misconduct. The ministerial exception exempts religious schools, hospitals, nursing homes, and everything else religious from state and federal antidiscrimination laws. The Supreme Court’s recent decision even ruled that Catholic laypeople and non-Catholics were Catholic ministers.

The Supreme Court has thus blanketed religions and their outward-facing services with immunity to the anti-discrimination laws, and they use it as often as they can. For example, consider Joshua Payne-Elliott’s recent case. He was a language and social studies teacher at Cathedral Hospital, in Indianapolis, Indiana. He started teaching there in 2006. He was fired in 2019 after marrying his same-sex partner. The partner teaches at the nearby Brebeuf Jesuit Preparatory School. After Brebeuf refused to fire the partner, the Catholic Archbishop denied the Brebeuf School its Catholic status. Cathedral kept its Catholic status by firing Payne-Elliott. Cathedral argued that freedom of association, the purported “doctrine of church autonomy,” and the ministerial exception barred the lawsuit. Those principles gave the diocese the right to act “without any legal consequences,” it argued. Once again, the church made a religious argument for a right to discriminate against everyone.

The trial court dismissed Payne-Elliott’s lawsuit. For now, the appeals court has reversed. Think of the key distinction. If you want to be a Catholic institution, you have to be willing to discriminate against LGBTQs. If you will not discriminate, you lose your Catholic status. That has happened before. One nun was excommunicated, and her hospital lost its Catholic status because they faced a situation in which “[b]oth mother and fetus were dying” and “[o]nly the mother’s life could be saved.” The hospital allowed the woman to terminate her pregnancy. Her medical personnel said yes to a life-saving medical procedure, but religion said they could not save the mother’s life.

That is all bad news for schoolteachers and people who work in religious hospitals and missions. Religions have freedom to disobey all the employment laws of the states and the United States. Sensible thinking about the separation of church and state would not incentivize religious organizations to discriminate against all employees at will. Rather, it would require that religions follow the laws that protect everyone.

Prof. Griffin has written numerous briefs in ministerial exception cases, explaining to the courts how much religious employees have suffered. They lose their jobs, security, and reputations because they are Black or Brown, female or LGBTQ, old or unwell. She wrote a brief in the Supreme Court’s first ministerial exception case, Hosanna-Tabor, explaining that the employee’s claim of disabilities discrimination could be reviewed on neutral, legal grounds without interfering with religious freedom. Her Indiana Law Journal article on that case was highlighted in a constitutional law blog as “the missing dissenting opinion in Hosanna-Tabor.” Griffin, who was a theology professor in her first career, explained in an amicus brief in the Court’s second ministerial exception case, Morrissey-Berru, that the Catholic laity are not ministers. They become “ministers” only when they are fired and want to sue the church.

Griffin believes religions should win some ministerial exception cases when they fire real clergy for religious reasons. But those cases should be tried in court, where the religions win some cases and lose whenever the facts show invidious discrimination. She wants to persuade the religions that they should treat their employees with respect and dignity instead of with contempt and discrimination. The antidiscrimination laws must protect everyone. She and Prof. Hamilton wrote another Supreme Court amicus brief arguing that Philadelphia should be able to enforce its antidiscrimination lawsuits protecting LGBTQ foster parents. A country with antidiscrimination laws that don’t apply to religions is not a country protecting the separation of church and state.

Controversy 4: The Push for Ever-More Religious Funding

When the Supreme Court shared James Madison’s fear of the tyranny of religion, the Court ruled that the state could not fund religion. As we have seen, religions do not always obey the law; nor do they lobby or litigate with the greater good foremost. They demand “autonomy” as they cover up the suffering of children, they fire people freely, and they discriminate against the people’s health needs. They have belief rules for themselves that others cannot follow. The 1970s Court kept religion and government separate. When the Court started to move away from that rule, Justice Sandra Day O’Connor reminded the other Justices that the government should not fund religion.

The current Court is diminishing the separation of church and state that barred religion from direct funding. In 2017, in Trinity Lutheran, the Court ruled that Missouri’s decision to deny Trinity Lutheran funding for its church playground violated the Free Exercise Clause. Justice Sotomayor’s dissent warned that the decision undermined the Court’s long commitment to the separation of church and state.

Separation was further undermined in the next case, Espinoza. There the Court ruled that if the state funds private schools, it must fund religious schools as a right of free exercise.

The Court may go even further this Term. A Maine law that says schools used for public education must be nonsectarian is under challenge by parents at religious, sectarian schools. At the oral argument, Maine’s lawyer explained that the parents “want an entirely different benefit, instruction designed to instill religious beliefs at taxpayer expense.” We know that it is not religious discrimination to say that a public school cannot be religious; instead, that separation is a fundamental First Amendment principle. Public schools are for everyone, and are not supposed to advocate a religious world for their students.

We wait to see if the Court will completely abolish separation in Carson v. Makin. Will the Court rule that religions that are not bound by any of our laws must now get state funding for all their discrimination, their secrecy about the harm they do, and conclude that some public schools have to be sectarian? That would be another huge victory for religion-based law, and a gut punch to the public good Let’s face it, this line of cases is about the seemingly endless drive of religion to seek ever greater tax revenues from those who do not agree with their beliefs.

Controversy 5: Religious Arbitration as a Means of Trapping Apostates

Scientology has also abused victims. Several women have filed a civil lawsuit, saying they were stalked and harassed by Scientology after they were raped by Scientologist Danny Masterson. They were stalked and harassed as a result of reporting the rapes to the authorities (see above regarding the propensity of religions to have a rule that forbids putting them in a bad light). Masterson is now awaiting a criminal trial for rape. The survivors alleged that the church had hired people to follow and videotape them, taping their phone calls and following their email accounts, leaving their car doors open in their driveways, and harassing them by surveilling them from neighboring properties. The allegations also include that their pet dogs either died or were poisoned while the Scientologists were pressuring them.

That is the kind of harassment that should be assessed by a court. Instead, the Church of Scientology has argued that the “Religious Services Arbitration Agreement” the plaintiffs signed to become members forces any dispute into arbitration by a panel of three Scientologists. In other words, the church has members sign billion-year contracts to avoid legal liability for anything they ever do to harm them, even after the plaintiffs have rejected the religion. The plaintiffs joined and apparently can never leave.

The plaintiffs, in response, have asserted their First Amendment free exercise right to choose their own faith, which includes the right to exit a religion. The trial and appeals court sided with Scientology, but the California Supreme Court rejected their reasoning and demanded the lower courts “show cause” why these harassed rape victims could be forced into religious arbitration. Prof. Hamilton recently argued the appeal, explaining that the First Amendment protects an individual’s right to choose a religion and, correlatively, the right to reject a religion, and if the court were to enforce such an agreement, they would be complicit in forcing the plaintiffs back into a religious universe they have rejected.

This is a case of first impression—no ex-believer has argued that enforcing religious arbitration violates their own First Amendment rights. The supposed “autonomy” theory typically empowers institutions against individuals. Here, the plaintiffs are pointing out the obvious: the church is not the only religious actor in the lawsuit. They have free exercise rights, too. If religion can coopt the courts into permanently trapping members in the faith, and immunizing the religion from the laws that govern everyone else, the separation of church and state is dead.

Controversy 6: Fighting COVID-19

We have long advocated good health care for everyone, including the victims of COVID-19. Religion should not block their health care, and the government has a strong interest in protecting public health. That is why we have opposed the Supreme Court’s growing support of church complaints about the public health laws related to COVID. Once Justice Ginsburg died, the Court’s votes switched to taking steps to protect religious people against state health laws instead of requiring them to obey those laws. For example, during the oral argument involving the Mississippi abortion law last week, Justice Amy Coney Barrett approvingly mentioned a “right of bodily autonomy” with respect to vaccines.

Professor Andrew Koppelman recently wrote an essay entitled How religious liberty was distorted in the age of COVID-19. He explained just how far the Court has gone—too far—in protecting religion. Koppelman says “the Court’s conservative majority risks turning the free exercise of religion into something [Professor Douglas] Laycock never imagined: a right to kill people.” Really? Here is Laycock’s full quote: “First people claiming religious exemptions were blamed, inaccurately for the most part, for interfering with other people’s sex lives. Now they will be blamed, far more accurately, for killing large numbers of Americans.” We view the religious exemptions to marginalize LGBTQ as an abandonment of the public good as much as the religious exemption demands to avoid COVID vaccination. Is death the dividing line between the harm that is acceptable from religions and that which is not? We think not.

Our consistent point has been that giving religions too much freedom endangers their members, their fellow citizens, and the public good. Koppelman and Laycock usually argue for lots of religious freedom, as though it’s all for the public good. That is a dangerous and false assumption.

There is no excuse for not “imagining” religions will use faith to hurt others if permitted, to the point that they will let people die from a preventable disease. The fruits of the grand experiment of giving religions more rights than everyone else have been poisonous, literally. As Prof. Hamilton discussed in both editions of God vs. the Gavel, religions have led parents to let their children die from treatable illnesses, and these religions thrive at the altar of the extreme religious liberty that Koppelman and Laycock have endorsed.

Because of theorists like them, and Prof. Michael McConnell, whose questionable constitutional history has abetted the demands by religion to ignore the law and their obligations to the public good, the dangers of a country run by religion are right in front of us. Accordingly, we reaffirm the public value of the separation of church and state and urge courts and lawmakers to keep the states and the nation from being run by the world’s religions.

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