Legal Spirits 055: Speaker Mike Johnson on the Separation of Church and State

Speaker Mike Johnson on CNBC last month

In a TV interview last month, House Speaker Mike Johnson raised eyebrows by asserting that Framers welcomed religion in public life and that the Establishment Clause protects religion from the encroachment of government, not the other way around. In this podcast, we show how Johnson was both right and wrong. Many Framers shared his view, but others did not. The controversy over Johnson’s comments is just the latest episode in a continuing debate over the meaning of religious liberty. When we argue about the past, we are really arguing about what our country should be, today. Listen in!

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In The Satanic Temple, Inc. v. City of Boston, a Massachusetts federal district court affirmed Boston City Council’s refusal to invite a representative of The Satanic Temple (“TST”) to deliver an invocation. The court did not find evidence of discrimination against TST based on its religious beliefs, citing evidence that the councilors typically invited community-involved speakers serving their constituents, a qualification TST did not meet. While the court acknowledged the potential for abuse due to lack of formal written policy on selecting invocation speakers, it maintained that “the lack of a formal, written policy does not by itself create a constitutional problem.”
  • In Children of the Kingdom v. Central Appraisal District of Taylor County, a Texas state appellate court affirmed a $32,000 property tax assessment against a religious organization that did not apply for a tax exemption. The court rejected the organization’s claim that the exemption application requirement violated their First Amendment rights, stating it was a neutral and generally applicable requirement designed to maintain equality and uniformity in the property tax system.
  • In Salado v. Roman Catholic Diocese of El Paso, a Texas state appellate court determined that the ecclesiastical abstention doctrine prevented the court from ruling on whether funds raised by parishioners to construct a new church were improperly used by the diocese. The diocese had chosen to merge the parish with another and transfer the $1.4 million in funds to the new joint parish. The court stated: “To resolve the dispute… would require this Court to interpret Canon Law and policies of the Roman Catholic Church regarding the rights and authority of bishops regarding the patrimony of a parish. Churches have a fundamental right “to decide for themselves, free from state interference, matters of church government[.]”
  • A lawsuit was filed in Oklahoma state court challenging the state’s Virtual Charter School Board’s approval of a state-funded, Catholic-sponsored charter school, St. Isidore’s. The plaintiff alleges that St. Isidore’s operation would violate the Oklahoma Constitution, Charter Schools Act, and Board regulations, particularly on grounds of religious discrimination based on sexual orientation and gender identity, and non-compliance with nonsectarian requirements.
  • A law mandating the display of the national motto, “In God We Trust“, in all public school classrooms across Louisiana has taken effect with the start of the new school year. Democrat Gov. John Bel Edwards signed the House Bill 8 into law, which passed without any opposition in the Republican-led state Senate and House of Representatives. The legislation applies to public post-secondary institutions as well.
  • Ukrainian President Volodymyr Zelenskyy has signed a law to change the date of Christmas celebrations from January 7, followed by the Russian Orthodox Church, to December 25. As stated in an attached explanatory note, this move is part of an effort to “abandon the Russian heritage” and align more with Ukrainian traditions and holidays. The law also adjusts the dates for two other Ukrainian patriotic holidays.
  • Ilya Solkan, a priest in a small village near Kyiv, Ukraine, was expelled by his parishioners for introducing politics into his pastoral care and expressing support for Kremlin’s policies. Solkan belongs to the branch of the Orthodox Church tied to the Russian Orthodox Church in Moscow, which is seen by many Ukrainians as a symbol of Russian influence. Amid escalating tensions due to war, Ukraine is experiencing a growing rejection of the church’s Moscow-linked arm, and more than 1,500 local churches have switched allegiance to the Ukrainian national church. Solkan, now unemployed and ostracized, continues to hold services at his home and is attempting to regain his position through a lawsuit. Meanwhile, the villagers have welcomed a new priest from Ukraine’s national church.


Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Greene v. Teslik, the 7th Circuit dismissed a Protestant inmate’s complaint that prison officials violated the Free Exercise clause by denying his access to prayer oil. The court concluded that the officials were protected by qualified immunity. The court remanded the prisoner’s Establishment Clause claim for further development at trial, however.
  • In Harmon v. City of Norman, Oklahoma, the 10th Circuit affirmed a trial court’s dismissal of challenges to the city’s disturbing-the-peace ordinance brought by anti-abortion activates who demonstrate outside abortion clinics. The court reasoned, in part, that the plaintiffs lacked standing to challenge the city ordinance.
  • In Ravan v. Talton, the 11th Circuit held that a Jewish plaintiff should have been able to move ahead with RLUIPA claims against a food service, and First Amendment Free Exercise claims against two food service workers, for denial of kosher meals on seven different occasions while he was in a county detention center. The court stated that “the number of missed meals is not necessarily determinative because being denied three Kosher meals in a row might be more substantial of a burden on religion [than] being denied three meals in three months.”
  • Becket, a non-profit religious freedom law firm, has petitioned the Supreme Court for certiorari in Synod of Bishops of the Russian Orthodox Church Outside of Russia v. Belya. The petition comes after the 2nd Circuit denied a bid by the Church to dismiss a defamation lawsuit brought by a former priest who claims he lost an appointment to become the bishop of Miami due to false accusations of fraud and forgery by church officials. In a 6-6 ruling, the court declined to reconsider the ruling made by a three-judge panel last September, with dissenting judges arguing that the decision would infringe on church autonomy.
  • The West Virginia Legislature passed the Equal Protection for Religion Act. The bill prohibits state action that hinders a person’s exercise of religion, unless there is a compelling governmental interest, and the least restrictive means are used. The bill passed the Senate in accelerated fashion after it voted 30-3 to suspend its rules that normally require three readings before a vote. 
  • The Department of Labor has rescinded a Trump-era rule that broadly defined the religious exemption in anti-discrimination requirements for government contractors and subcontractors. The DOL criticized the 2020 rule for increasing “confusion and uncertainty” and for raising a “serious risk” of allowing “contractors to discriminate against individuals based on protected classes other than religion.” The Office of Federal Contract Compliance Programs has emphasized that a qualifying religious organization cannot discriminate against employees based on any protected characteristics other than religion.
  • At a New York Public Library interfaith breakfast, Mayor Eric Adams delivered remarks in which he argued against a separation of church and state in American society. Adams’ chief adviser, Ingrid Lewis-Martin, declared at the event that the mayor’s administration “does not believe” it must “separate church from state.” Adams stated that many societal issues can be traced to a decline in faith. “When we took prayers out of schools, guns came into schools,” the mayor said.

Around the Web

Here are some important law-and-religion news stories from around the web:

Bebbington, “Baptists through the Centuries” (2d ed.)

6286For students of church-and-state in America, the Baptists loom very large. Together with Enlightenment figures like Madison and Jefferson, the Baptists had a profound influence in the early Republic as strong advocates of separationism. Next month, Baylor University Press will release a new edition of a history of the Baptist movement, Baptists through the Centuries: A History of a Global People, by historian David Bebbington (Baylor). The new edition discusses the spread of Baptist churches in the global south. Here’s the description from the publisher’s website:

Baptists through the Centuries provides a clear introduction to the history and theology of this influential and international people. David Bebbington, a leading Baptist historian, surveys the main developments in Baptist life and thought from the seventeenth century to the present.

The Baptist movement took root and grew well beyond its British and American origins. Bebbington persuasively demonstrates how Baptists continually adapted to the cultures and societies in which they lived, generating ever more diversity within an already multifaceted group. Bebbington’s survey also examines the challenging social, political, and intellectual issues in Baptist history―attitudes on race, women’s roles in the church, religious liberty, missions, and theological commitments.

The second edition of this proven textbook extends the scope with chapters on three parts of the world where Baptists have become particularly numerous: Latin America (where Brazilian Baptists number over 2 million), Nigeria (where Baptists are at their strongest outside North America, numbering roughly 5 million), and the Naga Hills in India (where Baptists form over 80 percent of the population). Each chapter also highlights regional issues that have presented new challenges and opportunities to Baptists: holistic mission in Latin America, the experience of charismatic renewal and the encounter with Islam in Nigeria, and the demands of peacemaking in the Naga Hills.

Through this new edition, Bebbington orients readers and expands their knowledge of the Baptist community as it continues to flourish around the world.

Around the Web

Some important law-and-religion stories from around the web:

“Churches and States” (Hryn, ed.)

In July, Harvard University Press will release “Churches and States: Studies on the History of Christianity in Ukraine,” edited by Halyna Hryn. The publisher’s description follows:

This book collects nine articles that originally appeared in the journal Harvard Ukrainian Studies and that arose from the Harvard Ukrainian Research Institute’s Millennium Project, an initiative launched in the 1980s to celebrate onemissing_jacket
thousand years of the Christianization of Kyivan Rus´. The articles cover a wide array of subjects: the ecclesiastical structure of the Christian Church in Rus´ in its earliest period (Andrzej Poppe); the conflict between Orthodoxy and the Uniate Church from 1569 to 1700 (Teresa Chynczewska-Hennel); an account of the Uniate Church and the partitions of Poland (Larry Wolff); the transformation of the Greek Catholic Church under the Austrian Empire (1848–1914) (John-Paul Himka); the Greek Catholic Church in the period between the two World Wars (Andrew Sorokowski); a rethinking of the relationship of Church and society in Galician Ukraine from 1914 to 1944 (Bohdan Budurowycz); and the Russian Orthodox Church in Ukraine during the interwar period (Bohdan Bociurkiw). The book concludes with a bio-bibliography of Bohdan Bociurkiw, a scholar who devoted his career to the study of Ukrainian Church history (Andrii Krawchuk). These essays provide new insights and a fresh perspective to the discipline.

“The Rise of Corporate Religious Liberty” (eds. Schwartzman, Flanders, & Robinson)

In December, the Oxford University Press will release “The Rise of Corporate Religious Liberty,” edited by Micah Schwartzman (University of Virginia School of Law), Chad Flanders (St. Louis University School of Law), and Zoë Robinson (DePaul University College of Law).  The publisher’s description follows:

What are the rights of religious institutions? Should those rights extend to for-profit corporations? Houses of worship have claimed they should be free from anti-discrimination laws in hiring and firing ministers and other employees. Faith-based institutions, including hospitals and universities, have sought exemptions from requirements to provide contraception. Now, in a surprising development, large for-profit corporations have succeeded in asserting rights to religious free exercise. The Rise of Corporate Religious Liberty explores this “corporate” turn in law and religion. Drawing on a broad range perspectives, this book examines the idea of “freedom of the church,” the rights of for-profit corporations, and the implications of the Supreme Court’s landmark decision in Burwell v. Hobby Lobby for debates on anti-discrimination law, same-sex marriage, health care, and religious freedom.

Now Comes the “Museum of the Bible”

This story reports on the arrival in Washington, D.C. of a new museum, the “Museum of the Bible,” whose collection will include “pieces of the Dead Sea Scrolls, a Gilgamesh tablet, Elvis Presley’s Bible and about 850 manuscripts, 12 of which are in Hebrew and come from China’s Jewish population. A third of the material may be considered Judaica, related to Judaism and the Old Testament, including torahs that survived the Spanish inquisition and the Nazis.”

Notwithstanding this scattershot miscellany, the story seems determined to find a controversial church-state angle. It reports that the museum is the creature of Hobby Lobby President Steve Green and that its proposed location near the Mall might well overshadow a downtown skyline that is “dominated by monuments to men.” Objections to the museum appear to combine the aesthetic, the religious, and the ideological: e.g., “To many in the scholarly community, the museum seems like an oversize piece of evangelical claptrap”; “The museum will be a living, breathing testament to how American evangelicalism can at once claim it is under siege from secularists, the LGBT rights movement, or feminism — yet also boast of acquiring a prime private perch, strategically located at the nation’s epicenter of law and politics.”

But perhaps all of this is too much fuss over a development that secular critics of

"Creation" Museum
“Creation” Museum

the museum might welcome. Artifacts that get their own museums are probably on their way out culturally. Museums generally involve subjects and events that are in some way closed affairs–affairs to be studied and reflected on retrospectively. Proust recognized as much when he spoke of the movement to turn French cathedrals into museums in the early 20th century, which he pronounced “the death of the Cathedral.”

As for the American religion that needs defending against the assault of the museum, that’s nearly perfectly summarized in the first paragraph of the story (though the final word “instead” seems entirely out of place):

In Washington, separation of church and state isn’t just a principle of governance, it’s an architectural and geographic rule as well. Pierre L’Enfant envisioned a national church on Eighth Street. A patent office was built on the site instead.

Proust, “The Death of Cathedrals”

I am late in posting a notice for this wonderful short piece by Marcel Proust (yes, that one), The Death of Cathedrals, first published in Le Figaro in 1904 and translated for the first time into English (John ChartresPepino). As the introduction explains, the context of Proust’s essay was the strict separationism afoot in France in the early 20th century (culminating in the 1905 “Law of Separation”), and in specific what would happen to France’s cathedrals under the new secular dispensation. Proust was an Agnostic and in some ways that makes his reflections on the subject all the more interesting. But what is truly fascinating is how completely different his views are from the typical American separationist position. Like from another planet (albeit a perfectly inhabitable one). A bit from the beginning:

Suppose for a moment that Catholicism had been dead for centuries, that the traditions of its worship had been lost. Only the unspeaking and forlorn cathedrals remain; they have become unintelligible yet remain admirable.

Then suppose that one day scholars manage, on the basis of documentary evidence, to reconstitute the ceremonies that used to be celebrated in them, for which men had built them, which were their proper meaning and life, and without which they were now no more than a dead letter; and suppose that for one hour artists, beguiled by the dream of briefly giving back life to those great and now silent vessels, wished to restore the mysterious drama that once took place there amid chants and scents—in a word, that they were undertaking to do what the Félibres have done for ancient tragedies in the theatre of Orange.

Is there any government with the slightest concern for France’s artistic past that would not liberally subsidize so magnificent an undertaking? Do you not think that it would do what it did in the case of  Roman ruins for these cathedrals, which are probably the highest, and unquestionably the most original expression of French genius? After all, one may well prefer the literature of other peoples to ours, prefer their music to ours, their painting and sculpture to ours, but it is in France that Gothic architecture created its first and most perfect masterpieces.  All other countries have done is to imitate our religious architecture without ever matching it.

And so, to return to my hypothesis, here come scholars who have been able to rediscover the cathedrals’ lost meaning. Sculptures and stained-glass windows recover their significance, a mysterious odor once again wafts in the temple, a sacred drama is performed, and the cathedral starts to sing once more.  When the government underwrites this resurrection, it is more in the right than when it underwrites the performances in the theaters of Orange, of the Opéra-Comique, and of the Opéra, for Catholic ceremonies have an historical, social, artistic, and musical interest whose beauty alone surpasses all that any artist has ever dreamed, and which Wagner alone was ever able to come close to, in Parsifal—and that by imitation.

Caravans of swells make their way to the holy city (whether it is Amiens, Chartres, Bourges, Laon, Rheims, Rouen, Paris, or whatever town you please, we have so many sublime cathedrals!), and once a year they experience the feeling they once sought in Bayreuth and in Orange: enjoying a work of art in the very setting that had been built for it. Alas, here as in Orange, they can only ever be curious dilettantes; try as they might, the soul of times past does not dwell within them. The artists who have come to perform the chants, the actors who play the role of priests may be learned, they may have imbued themselves with the spirit of the texts, and the Secretary of Education will lavish medals and compliments upon them. Yet, in spite of it all, one cannot help but think “Alas! How much more beautiful these feasts must have been when priests celebrated the liturgy not in order to give some idea of these ceremonies to an educated audience, but because they set the same faith in their efficacy as did the artists who sculpted the Last Judgment in the west porch tympanum or who painted the stained-glass lives of the saints in the apse. How much more deeply and truly expressive the entire work must have been when a whole people responded to the priest’s voice and fell to its knees as the bell rang at the elevation, not as cold and stylized extras in historical reconstructions, but because they too, like the priest, like the sculptor, believed. But alas, such things are as far from us as the pious enthusiasm of the Greeks at their theater performances, and our ‘reconstitutions’ cannot give a faithful idea of them.”

That is what one would say if the Catholic religion no longer existed and if scholars had been able to rediscover its rites, if artists had tried to bring them back for us. But the point is that it still does exist and has not changed, as it were, since the great century when the cathedrals were built. For us to imagine what a living and sublimely functioning thirteenth-century cathedral was like, we need not do with it as we do with the theater of Orange and turn it into a venue for exact yet frozen reconstitutions and retrospectives. All we need to do is to go into it at any hour of the day when a liturgical office is being celebrated. Here mimicry, psalmody, and chant are not entrusted to artists without “conviction.” It is the ministers of worship themselves who celebrate, not with an aesthetic outlook, but by faith—and thus all the more aesthetically. One could not hope for livelier and more sincere extras, since it is the faithful  that take the trouble of unwittingly  playing their role for us. One may say that thanks to the persistence of the same rites in the Catholic Church and also of Catholic belief in French hearts, cathedrals are not only the most beautiful monuments of our art, but also the only ones that still live their life fully and have remained true to the purpose for which they were built.

….

Today there is not one socialist endowed with taste who doesn’t deplore the mutilations the Revolution visited upon our cathedrals: so many shattered statues and stained-glass windows! Well: better to ransack a church than to decommission it. As mutilated as a church may be, so long as the Mass is celebrated there, it retains at least some life. Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum. One may say to churches what Jesus said to His disciples: “Except you eat the flesh of the Son of man, and drink his blood, you shall not have life in you” (Jn 6:54). These somewhat mysterious yet profound words become, with this new usage, an aesthetic and architectural axiom. When the sacrifice of Christ’s flesh and blood, the sacrifice of the Mass, is no longer celebrated in our churches, they will have no life left in them. Catholic liturgy and the architecture and sculpture of our cathedrals form a whole, for they stem from the same symbolism. It is a matter of common knowledge that in the cathedrals there is no sculpture, however secondary it may seem, that does not have its own symbolic value. If the statue of Christ at the Western entrance of the cathedral of Amiens rests on a pedestal of roses, lilies, and vines, it is because Christ said: “I am the rose of Saron”;  “I am the lily of the valley”;  “I am the true vine.”