The collapse of Church and State

The separation of church and state is supposed to prevent government favoritism towards religion in the United States. For most of the last century, the Supreme Court interpreter the establishment clause of the first amendment means that the government cannot “pass laws that help one religion, help all religions, or prefer one religion over another.” Under this principle of dissolution, at the very least, the government cannot grant special privileges to religious organizations beyond what is available to non-religious groups in a similar situation.

But the past few months have seen an almost complete collapse of this principle at the national level, at least when it comes to government funding of religion. Under the Payment Protection Program, which allocated $ 669 billion in grants to support small businesses during the coronavirus pandemic, the government has extended funding to churches and other places of worship. This program is unprecedented in terms of the amount of money involved and the religious nature of the activities, including the payment of clergy salaries, which the government subsidizes.

Like us recently wrote in The New York TimesThis funding of faith-based organizations has received little attention, in part because of the feeling that churches, like other groups, have been harmed by government-ordered closures. If churches are to comply with public health restrictions like other businesses and nonprofits, they should be compensated as well, the thought said. In short, they should receive equal treatment when it comes to PPP financing.

But religious and non-religious groups are not treated equally under the program. Far from there. The Small Business Administration has granted a special waiver to its eligibility rules. These rules are designed to ensure that PPP loans only support small businesses and nonprofits, defined as those with fewer than 500 employers. To this end, one of the rules denies aid to organizations affiliated with larger entities. For religious associations, however, the SBA has departed from this rule.

As a result, many religious organizations, including thousands of local congregations, have received hundreds of millions, and probably Billions, dollars in PPP loans, even if they are affiliated with large organizations that have a total of more than 500 employees.

Yet secular nonprofit organizations, such as the Boys and Girls Club, the YMCA, and Goodwill, which may have similar affiliate structures are not eligible for this exemption. In fact, they can be entirely excluded to receive PPP loans. Many locals of national nonprofits may not have requested federal assistance because they feared they would be ineligible, while others help requested and received. Now these large nonprofits face legal risks that religious entities do not. The implementation of the program by the SBA therefore favors nationally affiliated religious organizations over their non-religious counterparts. The extent of this disparity is expected to become clearer when the SBA discloses more detailed data on PPP loans and their beneficiaries, which it now has. promised do, reversing his previous refusal to disclose this information.

For now, the SBA’s discrimination in favor of religious organizations is most visible in the case of Planned Parenthood. When P3 funding became available, 38 local Planned Parenthood centers applied for and received federal loans totaling approximately $ 80 million. But the SBA is now demanding that these Planned Parenthood affiliates reimburse the money they have received. This complaints that these local centers are not eligible because they are controlled by a national umbrella organization, the Planned Parenthood Federation of America.

A group of 27 Republican senators, led by Tom Cotton and Mitch McConnell, clung to this argument. In a May 21 letter, they called on Attorney General William Barr to open an investigation into Planned Parenthood and suggested that affiliates face civil and criminal penalties for filing fraudulent loan applications. Senator Marco rubio, who chairs the Senate committee that oversees the SBA, also demanded that the agency cancel P3 loans to Planned Parenthood subsidiaries and investigate their wrongdoing. In response, Senate Democrats accused the SBA for attacking Planned Parenthood for partisan and ideological purposes. For its part, Planned Parenthood published a declaration claiming that its local centers meet existing SBA eligibility requirements.

This back-and-forth between Republican senators and Democrats is just the latest iteration of political disputes over abortion. Conservative politicians have long sought to fund Planned Parenthood because of its support for women’s reproductive rights, including abortion services; liberals and progressives have taken turns defending the organization. Thus, the motivation of Republicans to target family planning is no mystery.

There is, however, a more fundamental problem with these recent attacks on Planned Parenthood – a constitutional flaw that even critics of the organization should recognize. By favoring religious organizations over secular nonprofits, Senators SBA and GOP advance a position that violates the establishment clause, which prohibits the government from making special grants to religious organizations. One would have thought that the separation of church and state would prevent churches from receiving PPP loans to fund clergy salaries. But even as the Supreme Court moved away from a principle of separation, first by allowing public funding of religious organizations and now increasingly towards the demand for equal treatment, a policy favoring groups. religious would completely reverse the establishment clause. And indeed, an important and long-standing objection to an equal funding regime is that it leads to precisely this result, namely, preferential treatment for religion.

The implementation of PPP funding by the SBA shows how equal treatment can lead to such favoritism. The Trump administration has asserted that churches should receive federal funding on the same terms as secular nonprofits. But the SBA’s religious waiver of its membership rules means that religious groups are not, in fact, treated equally – they are favored, and on a massive scale. Religious groups that would otherwise be excluded from funding under neutral membership rules can receive billions of dollars in federal aid, while organizations like Planned Parenthood receive nothing.

Why should secular nonprofits be treated one way and religious groups another? ASB waived her membership rules for faith-based organizations because she believed these rules would “significantly burden” groups that are religiously attached to hierarchical forms of organization, and because she believed the membership rules would entangle the courts in decisions about how religious organizations are structured. According to the SBA, its religious exemption is permitted under the Restoration of Religious Freedom Act (RFRA), which prohibits the federal government from imposing substantial burdens on religion, and possibly under the First Amendment. , which has been interpreted as limiting government interference in the decisions of religious organizations.

There is reason to be skeptical about these arguments. Neutral membership rules, which limit the size of loan recipients, obviously do not trigger protection under the RFRA or interfere with the internal decision-making of religious organizations. But if these dangers exist, they can be addressed by exempting all nonprofits from the membership rules, treating all these employers equally. What cannot be justified is giving religious groups an accommodation that allows federal funding while disadvantaging secular organizations that are similarly structured and have been burdened by the same related public health regulations. to the pandemic.

The uneven application of its rules by the SBA contradicts existing legal doctrine under the establishment clause. The Supreme Court ruled in a crucial 1989 case, Texas Monthly vs. Bullock, that Texas could not exempt religious periodicals from its sales tax while taxing secular periodicals such as Texas monthly. In a concurring review opinion, Judge Harry Blackmun wrote that “a state cannot give tax relief to those who spread the gospel that it does not also give to others who might actively advocate for the gospel. disbelief in religion ”. But here the SBA has done much the same.

The Supreme Court recently highlighted the importance of treating religious organizations as non-religious groups in the provision of public benefits. Last month, before the first Supreme Court decision involving churches during the COVID-19 epidemic, Judge Brett Kavanaugh wrote in a dissenting opinion that “the Church and its faithful simply want to be treated on an equal footing with comparable secular businesses.” But when it comes to P3 funding, some churches don’t want equality. They want to be treated more favorably than their secular counterparts.

Planned Parenthood affiliates have constitutional grounds to resist demands for repayment of their P3 loans. While small religious nonprofits are eligible to receive PPP funds, even if they are affiliated with large national organizations, the same eligibility rules should apply to secular nonprofits such as Planned Parenthood.

There cannot be two sets of fundraising rules: one that sends billions of dollars to local religious congregations and the other that denies the same support to secular nonprofits. If these rules are constitutional, even if they allow more direct financial support to churches than at any time in American history, then the establishment clause has lost its meaning. At the very least, he must defend the proposition that the government cannot choose religious organizations for special privileges. If this principle breaks down, the country will not only see the end of the separation of church and state in public funding, but also a subversion of the commitment to equal treatment. who would replace her. Instead, what will exist is a regime that favors religious organizations over others.

About Thomas Thorton

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