700x394_R.Foltin_5.27.20

Houses of Worship and the Urgency of COVID-19

By all accounts, no one factor was more responsible for adoption of the Establishment Clause (the provision of the First Amendment prohibiting government establishment of religion) than grassroots opposition to the practice of using government coffers to pay clergy salaries and build and maintain churches and church property.

It is therefore no surprise that supporters of strict separation of church and state have long espoused an all-but-categorical prohibition on the use of taxpayer funds to support houses of worship — a view that long held sway over the courts.

In recent years, there has been a sea change as the courts have moved towards an “equal treatment” reading of the Establishment Clause (and also of its partner, the Free Exercise Clause) that countenances taxpayer funds flowing to houses of worship where this is done on the basis of neutral principles that neither prefer one faith group over another nor make a preference between religious and secular institutions.

In a notable recent instance, the U.S. Supreme Court ruled in 2017 in the case of Trinity Lutheran Church of Columbia, Inc. v. Comer, that Missouri’s denial to a religious school of funds for playground resurfacing, where such funds were provided to similarly situated non-religious facilities, was not only not required by the Establishment Clause, but even violated free exercise protections.

Until now, however, it has been virtually unheard of that government funds could be used to pay clergy salaries. In April, that Rubicon was crossed in the form of the Trump administration’s implementation of the CARES Act, the multi-trillion-dollar COVID-19 stimulus package enacted by Congress in late March.

The Paycheck Protection Package (PPP), created by the CARES Act and overseen by the Small Business Administration (SBA) with funds flowing to applicants through private banks, provides loans to cover the payrolls of small organizations that would otherwise have been compelled to let their employees go because of the ongoing shutdown and consequent economic crisis. The PPP further provides that loan recipients keeping their workers on staff for a designated period will have their loans forgiven — at which point the loans in effect become outright grants.

Relief under PPP is already unusual in that, unlike previous stimulus packages, it is available to tax-deductible charitable organizations. This unusual aspect of the program is heightened by the administration’s determination, as reflected in SBA FAQs dated April 3, 2020, that “[n]o otherwise eligible organization will be disqualified from receiving a loan because of the religious nature, religious identity, or religious speech of the organization.”

Since houses of worship are tax-deductible charitable organizations, they are therefore eligible to receive loans — and to have those loans forgiven — on the same terms as other nonprofits. To this point, the FAQs track the situation in Trinity Lutheran Church (on which decision the FAQs rely), namely that the funds were being used to serve the clearly secular state interest of protecting the well-being of children. However, the SBA FAQs go on to say there is no requirement that these forgivable loan funds be used only for secular purposes and that, “[i]n particular, loans under the program can be used to pay the salaries of ministers and other staff engaged in the religious mission of institutions.”

To date, as reported in The Washington Post (May 9, 2020), some 10,000 of the nation’s 17,000 Catholic parishes have applied for funding under this program, with about 6,000 having so far had their applications approved. Many Protestant churches and dioceses have also applied for — and a substantial number have been approved for — this funding, as have an array of synagogues. The Jewish Federations of North America, which is helping facilitate applications by Jewish institutions, advises that thus far, about 220 synagogues have received approximately $150 million in loans.

Church-state separationist organizations quickly expressed alarm at the SBA’s determination that forgiveness of PPP loans is available to houses of worship, even when the proceeds of those loans are used for clergy salaries and other explicitly religious purposes. In a letter to SBA Administrator Jovita Carranza, Americans United for Separation of Church and State and five other national progressive organizations, most of them faith-based, pointed out that forgiveness of the loans essentially converts them into outright grants, and went on to say that, “[a]lthough it may not seem easy in times like these to tell those seeking aid that certain costs are not eligible for loan forgiveness, the bar on the government funding of religious activities is an important limitation that exists to protect religious freedom for all.”

While acknowledging that “in these unprecedented and difficult times, many people and institutions, including houses of worship, are facing grave human and financial challenges,” forgiveness of loans used to pay for salaries of clergy and other explicitly religious activities, the letter asserted, runs afoul of “the fundamental First Amendment principle [grounded in the history of the amendment’s adoption] that taxpayer funds may not be used to support religious activities.” The use of taxpayer funds for those purposes makes this case distinguishable, the letter argued, from the situation in Trinity Lutheran.  Moreover, the letter pointed out, the CARES Act’s substantial accountability and documentation measures presents a risk to houses of worship of “disruptive inquiries into finances and personnel decisions, battles over regulation and accountability and political debates.”

In contrast, Russell Moore, president of the public policy arm of the Southern Baptist Convention, has said that the loans are “not from the government at all, but, as always, from banks” and that “[t]he government’s role is simply to guarantee to the banks these loans.” Even forgiveness of the loans, Moore contends, is not remarkable in that it is part of the CARES Act’s effort to mitigate the consequences of a government-directed shutdown that has been implemented to protect public health.

So there we have a distinct divide between those who see nothing problematic in PPP loan forgiveness being made available to houses of worship, even with respect to loans the proceeds of which have been utilized for explicitly religious purposes, and those who assert that even “in these unprecedented and difficult times” the government has gone too far.

Does it make a difference that PPP is being implemented at a time of overwhelming, society-wide threat to virtually all our institutions? Here, a bit of recent history may be instructive.

In 2003, in an initiative adopted following Sept. 11 and in the face of ongoing threats against religious institutions, Congress established the Nonprofit Security Grant Program (NSGP) to support strengthening the physical security of buildings (known as “target hardening”) that house nonprofit organizations at high risk of a terrorist attack. NSGP has been renewed regularly; in the current fiscal year, it is funded in the amount of $90 million. From the outset, a substantial portion of those funds has gone to houses of worship, synagogues most of all, based on the objective reality that these institutions have disproportionately been the targets of acts and threats of violence.

Nevertheless, objections were raised by advocates in pre-Trinity Lutheran days that, even though the program clearly serves the secular purpose of protecting the security of nonprofit organizations, providing funds to houses of worship violated church-state separation. Some, such as the Anti-Defamation League, remain opposed. On the other hand, while the Union for Reform Judaism was among those initially raising church-state concerns (even as, from early on, reform synagogues were afforded leeway to apply for, and many received, NSGP funding), it subsequently moved away from that opposition.

Some of the same tensions have played out in connection with the question of whether or not houses of worship may receive federal disaster relief funds from the Federal Emergency Management Agency (FEMA). As a result of catastrophic damage suffered in a number of natural disasters during the last 20 years, houses of worship applied for such relief only to be told by successive FEMA administrators of both parties that institutions whose property was used primarily for inherently religious activities were not eligible for such assistance. In 2013, following Hurricane Sandy, bipartisan legislation was introduced in both houses of Congress allowing houses of worship to receive FEMA funds. This legislation was later passed by the House of Representatives, but not the Senate. In January 2018, the Trump administration announced new rules pursuant to which houses of worship damaged during natural disasters could apply for FEMA relief.

As with NSGP, church-state advocacy groups protested the Trump action as a violation of the constitutional prohibition on the establishment of religion. The concerns here are very similar to those associated with underwriting the salaries of clergy. The architecture of a house of worship is an expression of the practical — as a place of assembly — and an expression of the theology of the faith it serves. Inevitably, funds directed at rebuilding a church after a hurricane, or even hardening the doors and windows of a synagogue as a response to threat, means that those funds will be used toward construction of facilities that are themselves a form of religious expression, whether that be the sanctuary or a steeple. That is a far cry from paying to repave a playground.

Under ordinary circumstances, then, the use of government funds for such explicitly religious infrastructures, as with government funding of clergy salaries, should be regarded as exactly the kind of government support for religion that the framers had in mind when the Establishment Clause was adopted — and ought therefore not to be countenanced even under the “equal treatment” paradigm advanced in Trinity Lutheran. In other words, Trinity Lutheran ought not to be extended to a general rule under which government funding can be used to underwrite the building of churches or the paying of clergy salaries, even as part of a neutral program. That would be a bridge too far.

But the PPP, as with the Nonprofit Security Grant Program and the extension of FEMA funds to houses of worship following a natural disaster, is not a response to ordinary circumstances. Rather, it is a response to overwhelming, once-in-a-lifetime events that bring with them a compelling interest to lift all parts of the fabric of our society that have suffered untold damage — even institutions that under our constitutional regime are ordinarily not considered, at least for certain of their activities, to be eligible for government assistance.

In short, PPP is a response to an emergency — it provides assistance that is a form of social solidarity and social insurance, much like the fire and police assistance that we provide to all at times of need. This sui generis situation, founded in the recognition that “we are all in this together,” must not be seen as a basis to generally enable government funding of religious activities by sectarian organizations.

Is there a danger that some may seize the opening provided by this approach and thereby justify government funding of clergy salaries and other explicitly religious activities in the future as long as the funding is arguably “neutral?” Of course there is. Those who believe that such funding would be a betrayal of fundamental constitutional principles will need to remain vigilant to respond to such incursions on our liberties. But we also need to be aware of, and respond to the unusual and difficult challenges that houses of worship face today, along with the rest of our society.

Richard Foltin is a Freedom Forum Fellow. He can be reached at [email protected].

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