A few weeks ago, Ken Starr praised the U.S. Supreme Court’s decision in Trinity Lutheran Church v. Comer as a “mighty blow for religious freedom.” In doing so, the former president of the world’s largest Baptist university ignored a constitutional cornerstone treasured by Baptists: the First Amendment’s prohibition on government establishment of religion. Worse yet, he perpetuates the politically expedient yet woefully inaccurate idea that a rule designed to avoid funding churches is hostile to religion. Instead, it is a central component of protecting religious liberty, church autonomy and voluntary religion.
Trinity Lutheran Church is a case about the relationship between government funding and religious institutions, as well as how states can and must protect religious freedom. Specifically, it is about the long-standing constitutional rule against government funding of religion. Missouri’s state constitution, like those in 38 other states, bans government funding of churches. These state “no establishment” provisions protect against government funding of religion like the federal constitution but do so in different and sometimes more explicit ways.
Starr recognizes that Missouri’s policy was crafted in keeping with the state’s strong tradition of separating the institutions of church and state, but he fails to honor its roots. Baptists, in fact, were among the first and most vocal advocates of the separation of church and state, and our fingerprints are on the constitutional provisions that have long kept states from funding and interfering in churches. When Baptist minister and physician John Clarke wrote the influential Rhode Island colonial charter in 1663, he guaranteed religious freedom for all who would enter the colony. Clarke’s contemporary Roger Williams famously wrote that we needed a “hedge or wall of separation between the garden of the church and the wilderness of the world.”
When James Madison thought the U.S. Constitution adequately protected religious freedom by prohibiting religious tests for office, Virginia Baptist pastor John Leland persuaded him to advocate for amendments that would fully protect religious freedom for all. In Madison’s subsequent amendments, religion received a two-fold protection: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The American religious tradition would have developed very differently if religion had only been protected by one of these clauses and not the other.
During the Revolutionary Era, groups and individuals often wrote petitions to their legislative body to air their grievances. Baptists were especially prolific, writing consistently and frequently about the need for the separation of church and state in addition to concerns over free exercise. Baptists, Presbyterians and other religious dissenters worked to ensure that Virginia would provide religious liberty for all and did so by guaranteeing that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever… .” This language predates the U.S. Constitution and was included in numerous state constitutions, including Missouri’s.
Baptists know that separation of church and state is more than a “noble goal,” as Starr puts it. As Texas Baptist George W. Truett preached in 1920: “It is the consistent and insistent contention of our Baptist people, always and everywhere, that religion must be forever voluntary and uncoerced, and that it is not the prerogative of any power … to compel men … to pay taxes for the support of a religious organization to which they do not belong and in whose creed they do not believe. God wants free worshippers and no other kind.”
From Williams to Leland to Truett to Baptist leaders today, separating the institutions of the church from those of the state is vital to the preservation of true religion. If churches are no different from other charitable organizations, we have lost or greatly diluted the power of the Gospel. Religious exemptions become hard to defend. To maintain the independence and prophetic witness of our churches, we should not allow the government to fund or control them.
The Baptist Joint Committee for Religious Liberty filed a brief in the Trinity Lutheran Church case defending Missouri’s constitutional no-aid provisions based on the historical and practical ways they protect religious freedom. Starr admits that “our tax dollars shouldn’t go to build churches or pay rabbinical salaries.” On this we agree, and that is because churches are by definition distinct entities devoted to religious activity. Like Missouri, we view capital improvements to church property, including the parts of church property that are used in preschool ministries, as funding religion. Improving church property is more akin to building a church than government-paid social services such as medical treatment at a religiously affiliated hospital.
In this case, however, the justices in the majority simply did not see a church’s playground as a religious use. Instead, they focused on the grant program as a public benefit to improve safety requiring churches to be treated the same as other entities. While Justices Clarence Thomas and Neil Gorsuch, who Starr commends, would likely uphold government funding of a program that funds religious institutions even where the money was put to explicitly religious uses, Trinity Lutheran Church does not go that far.
The First Amendment and most state constitutions protect religious liberty by prohibiting the establishment of religion and ensuring its free exercise. Starr and the U.S. Supreme Court paid the former short shrift, but both are indispensable.