The Hypocrisy of Evangelical Churches During a Pandemic: They Want to be Exempt From Federal Law While Asking for Federal Funding

An op-ed appeared in the Washington Post on May 13, 2020 that looked at hypocrisy of evangelicalism and churches. While some churches are challenging stay at home orders by state governors during a pandemic they are also getting funds from the Paycheck Protection Act of CARES. Three law professors from the University of Virginia and Cornell write about the situation.

“Law is order, and good law is good order.”

Aristotle 

Then he said to them, “So give back to Caesar what is Caesar’s, and to God what is God’s.”

Matthew 22:21 NIV

Fourth Presbyterian Church in Chicago on Michigan Avenue. 

There was an interesting article in the Washington Post the other day that talked about the intricacies of evangelicalism and church during this COVID-19 pandemic. As you know many evangelicals are talking about religious freedom and think they are being persecuted. And yet as a result of the Paycheck Protection Act which was passed as a par of the CARES Act there are churches getting federal aid from the United States government. In the Washington Post on May 13, 2020 a solid op-ed was penned by three law professors who examine the problem. Nelson Tebbe is a professor of law at Cornell Law, while both Micah J. Schwartzman and Richard Schraggerare law professors at the Law School at the University of Virginia. Their article is called ,”Churches have been hypocritical during the pandemic.” I also have the article posted below.


More and more, churches are challenging stay-at-home orders or bans on large gatherings, with litigation in over a dozen states. In Virginia, for example, Lighthouse Fellowship sued the governor after police cited the church’s pastor for allowing in-person church services with more than 10 people. The U.S. Department of Justice backed the church, a move that puts pressure on the state to lift public health restrictions.

A conservative federal judge in Kentucky, Justin Walker, went so far as to say that “on Holy Thursday” the mayor of Louisville had “criminalized the communal celebration of Easter” — because he had discouraged large social gatherings, including at churches. And in another Kentucky case, a federal court of appeals has granted a religious exemption allowing in-person church services.

At the same time, however, houses of worship have received hundreds of millions, and perhaps billions, of dollars in federal funding under the Paycheck Protection Program of the Cares Act (the main coronavirus stimulus legislation). This program treats churches like any other business or nonprofit employer that needs funds to continue to pay its employees’ salaries. Some 9,000 Catholic churches have had their applications for federal funding approved, according to CBS News reporting, and a survey by LifeWay Research found that 40 percent of Protestant churches had applied (and 59 percent of those applications were accepted). As a result, for the first time in our nation’s history, the federal government is affirmatively subsidizing the salaries of clergy across the country.

These two striking developments reveal the confused state of our constitutional rules regarding the relationship between government and religion. On the one hand, churches argue that the free exercise clause of the First Amendment entitles them to special exemptions from stay-at-home orders. On the other hand, they also assert that churches can and must be treated just like nonreligious organizations when it comes to taxpayer funding. They rely implicitly on a 2017 decision, Trinity Lutheran v. Comer, in which the Supreme Court rejected Missouri’s exclusion of churches from a program to resurface school playgrounds.

Trump administration officials have embraced both of these arguments vigorously. It is not clear whether either holds up under current law — and, what’s more, they are in tension with each other. They do, however, make sense as part of a political program to advance religion.

Some stay-at-home orders issued by state governors are neutral as to religion, meaning that they apply in the same way to everyone. And religious actors cannot win free exercise exemptions from neutral and generally applicable laws, under a 1990 Supreme Court decision, Employment Division v. Smith. (The court held that Native Americans who sought to use peyote in religious ceremonies had to respect a ban on the drug.) We have concerns about how Smith was decided, but under its central holding, houses of worship do not have a special constitutional right to a religious accommodation from neutral stay-at-home orders.

Congregations are nevertheless arguing that the free exercise clause is relevant because they are not being treated equally. In many places, certain “essential” businesses may stay open, though others, including houses of worship, must close. If stay-at-home orders do not apply to some secular organizations — liquor stores have become the stock example, though hospitals and grocery stores have been deemed essential, too — then religious groups must also receive exemptions.

Yet it is hard to believe that the state officials who have ordered citizens to stay at home are singling out religious practices for discrimination — and it is especially unpersuasive in relatively conservative states such as KentuckyKansasMississippi and Tennessee, where some of these disputes have erupted.

Instead, officials have made local policy judgments that, for instance, grocery and liquor stores are not intended as gathering places, unlike houses of worship. They also present evidence that religious gatherings, such as schools and sports arenas, pose higher risks of spreading the coronavirus. There are all too many tragic examples in which churches have served as vectors of infection. And to the degree that there really does seem to be unfairness — if officials permit drive-in movie theaters that practice social distancing but prohibit drive-in churches that do the same thing — policymakers act properly by removing the disparity.

Many church claims, however, are better understood as pleas for special consideration, not equal treatment. When Rob McCoy, the pastor of Godspeak Cavalry Chapel in California, for example, argues that his religious services must be treated as essential, he is claiming that churches cannot be treated like schools, civic organizations and other gathering places (about which government is free to make public-health-based policy decisions). This perspective now has the strong backing of the Trump administration and some religious legal thinkers.

That line of argument stands in stark contrast to the parallel argument that churches are not special when it comes to receiving federal aid under the Paycheck Protection Program. Note that the terms of that program go beyond those in Trinity Lutheran v. Comer, the crucial 2017 case. In that instance, the money went toward a nonreligious expense: resurfacing a playground. But using tax dollars to pay clergy salaries takes concerns about the use of federal money to a new level.

The Establishment clause of the First Amendment has long been understood to stand against direct tax aid for churches. In an essay often cited as providing the clearest evidence of the clause’s original meaning, James Madison famously opposed a 1784 Virginia plan to fund clergy salaries with tax dollars. “Who does not see,” he wrote, that “the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?” Madison thought the plan unconstitutional even though it allowed taxpayers to choose the faith that would be receive their tax contributions, and even though it exempted minority sects that would have objected to the scheme.

Today, the Cares Act involves a lot more than “three pence only.” Nothing in our nation’s history even approximates the scope and scale of the act’s direct funding of core religious activities. Yet administration officials and conservative groups are contending that the program does not violate the establishment clause. In fact, failing to include them would violate the free exercise clause, they say.

But as some religious leaders advance their interests, even at the risk of undermining public health regulations, it is the Supreme Court that has allowed this contradictory set of principles to coexist.

The tension between these two positions dissolves at the level of conservative politics — including conservative legal politics. This is not a constitutional vision, or policy vision, that promotes religious neutrality. Rather, it’s one that promotes the interests of religious actors, and particularly those of religious majorities that are spearheading these political mobilizations during a time of national crisis.

Congress should weigh carefully the Establishment Clause implications of further extensions of the Cares Act. At the very least, if religious groups receive public support, they should also abide by neutral and generally applicable rules — especially when those rules were designed to protect the health of taxpayers who are supporting them.

 

3 thoughts on “The Hypocrisy of Evangelical Churches During a Pandemic: They Want to be Exempt From Federal Law While Asking for Federal Funding

  1. Evangelical Churches During a Pandemic: They Want to be Exempt From Federal Law While Asking for Federal Funding

    Well, Ayn Rand signed up for Social Security (and Medicare?) as soon as she was eligible and started getting & cashing those SSA checks.
    Had an airtight Objectivist rationale for it, too.

    Liked by 1 person

  2. On the one hand, churches argue that the free exercise clause of the First Amendment entitles them to special exemptions from stay-at-home orders. On the other hand, they also assert that churches can and must be treated just like nonreligious organizations when it comes to taxpayer funding.

    Smells like “What’s Yours Is Mine and What’s Mine Is MINE.”

    Liked by 1 person

  3. A bit of a critique here, regarding the Care’s Act. The only stipulation of the Care’s Act is to PAY the employees that are at a loss of income. HOW is that related to defying government orders to stay home?

    In addition, some states have DIFFERENT views of what one can PURCHASE, what BOAT they can ride in…Michigan! POT shops get a break, but you can’t buy SEED for other reasons. You can’t buy paint!

    I saw a meme yesterday that was FUNNY! A homeless family in a tent on a DOWNTOWN sidewalk is ALLOWED, but a TENT in a forrest is NOT ALLOWED.

    There is so much hypocrisy out there that has nothing to do with CHRISTIANS at all. Wear a mask, don’t wear a mask.

    I am a flagger. A electrical crew was working on electrical wires on a pole. The job got SHUT DOWN because the crew was not wearing masks. Did you know that the masks have a METAL nose piece to seal around the nose? They can’t wear one. WE ARE ESSENTIAL.

    This is all a LEARNING EXPERIENCE and no one has ever gone thru this before…not just Christians.

    PLEASE BE OBJECTIVE! And more ACCURATE regarding the Care’s Act.

    We are at a point NOW where, in MY opinion, the government can SUGGEST, but CANNOT mandate.

    People need to have a FREEDOM to choose. I KNOW your breathing situation. You should be able to CHOOSE to stay home. And if you CHOOSE to stay home, then you should be financially compensated, right?

    When we were at the beginning of this, ya, I was all about STAYING HOME. But I think it’s safe for SOME to go outside and play now. But to play SAFELY, using their own judgments.

    I understand the other side, BOTH SIDES of the argument. I’m not against you here, but I’m not for you here either. Care’s Act has nothing to do with STAYING HOME, it’s about loss of income of employees.

    NON CHRISTIANS ARE FIGHTING FOR THEIR RIGHTS, TOO…so this isn’t just about Chrsitians wanting to gather…drunks want to gather at the bar, too! Teens want to gather at the beach since they missed spring break! They missed out on GIRLS GONE WILD!

    Ed Chapman

    Like

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