Top Quotes: Supreme Court affirms free religious expression for football coach
By / Jun 27

In an affirmation of religious expression, the Supreme Court ruled 6-3 in Kennedy v. Bremerton on June 27 that “the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal.” The court found that Coach Kennedy’s private prayers after football games were “private speech, not government speech,” and teachers and students need not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Justice Gorsuch wrote the opinion of the court joined by Justices Thomas, Alito, and Barrett. Kavanaugh also joined the majority opinion except for Part III-B. Justices Thomas and Alito wrote concurring opinions. Justice Sotomayor authored the dissenting opinion, joined by Justices Breyer and Kagan.

The ERLC applauds the court for continuing to strengthen our nation’s long legacy of religious expression. First Amendment protections travel together, and the court was wise to observe that Coach Kennedy’s personal expressions of religious devotion created “no conflict between the constitutional commands of the First Amendment.”

In the amicus brief the ERLC joined, we argued that “the Establishment Clause does not require public schools to be policed as religion-free zones.” We agree with the court that public employees retain the freedom to act in private capacities while on the job, and teachers and coaches should be able to practice their religious beliefs without fear of excessive state incursion.

Below are key quotes from the majority opinion, concurrence, and dissent, highlighting how the court reached its decision. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

For more details on the religious liberty issues present in this case, see our explainer here. To keep up to date on all Supreme Court cases we are watching in 2022, visit ERLC.com/SCOTUS.

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From the Syllabus 

“The District Court found that the ‘sole reason’ for the District’s decision to suspend Mr. Kennedy was its perceived ‘risk of constitutional liability’ under the Establishment Clause for his ‘religious conduct’ after three games.” (1)

“The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.” (1) 

“The District, like the Ninth Circuit below, insists Mr. Kennedy’s rights to religious exercise and free speech must yield to the District’s interest in avoiding an Establishment Clause violation under Lemon and its progeny.” (4)

“But—given the apparent ‘shortcomings’ associated with Lemon’s ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause—this Court long ago abandoned Lemon and its endorsement test offshoot…In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” (4)

“The District next attempts to justify its suppression of Mr. Kennedy’s religious activity by arguing that doing otherwise would coerce students to pray…The Ninth Circuit did not adopt this theory in proceedings below and evidence of coercion in this record is absent.” (5)

“Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.” (6)

Majority Opinion: Justice Gorsuch

“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor.” (1) 

“Under this Court’s precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’” (12) 

“In this case, the District’s challenged policies were neither neutral nor generally applicable….Prohibiting a religious practice was thus the District’s unquestioned ‘object.’ The District candidly acknowledged as much below, conceding that its policies were ‘not neutral’ toward religion.” (14) 

“Of course, none of this means the speech rights of public school employees are so boundless that they may deliver any message to anyone anytime they wish…If a public employee speaks ‘pursuant to [his or her] official duties,’ this Court has said the Free Speech Clause generally will not shield the individual from an employer’s control and discipline because that kind of speech is—for constitutional purposes at least—the government’s own speech.” (15)

“At the other end of the spectrum, when an employee ‘speaks as a citizen addressing a matter of public concern,’ our cases indicate that the First Amendment may be implicated and courts should…attempt to engage in ‘a delicate balancing of the competing interests surrounding the speech and its consequences.’” (15)

“It seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech.” (17) 

“Others working for the District were free to engage briefly in personal speech and activity…That Mr. Kennedy chose to use the same time to pray does not transform his speech into government speech. To hold differently would be to treat religious expression as second-class speech.” (19)  

“It is true that this Court and others often refer to the ‘Establishment Clause,’ the ‘Free Exercise Clause,’ and the ‘Free Speech Clause’ as separate units. But the three Clauses appear in the same sentence of the same Amendment.” (20) 

“In Lemon this Court attempted a ‘grand unified theory’ for assessing Establishment Clause claims…that approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion.”(22) 

“In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings. [T]he line’ that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accord with history and faithfully reflect the understanding of the Founding Fathers.’” (23)

“Now, [the school district] says, it was justified in suppressing Mr. Kennedy’s religious activity because otherwise it would have been guilty of coercing students to pray. And, the District says, coercing worship amounts to an Establishment Clause violation on anyone’s account of the Clause’s original meaning.” (24)

“To be sure, this Court has long held that government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory.’ But in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.” (24-25)

“In short, Mr. Kennedy did not seek to direct any prayers to students or require anyone else to participate.” (26)

“Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’” (26)

“Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But ‘offense… does not equate to coercion.’” (26-27)

“Here, the District suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law—impermissibly coercive on students…Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity. Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the District’s rule, a school would be required to do so.” (28)

“We are aware of no historically sound understanding of the Establishment Clause that begins to ‘make it necessary for government to be hostile to religion’ in this way.” (29)

“In truth, there is no conflict between the constitutional commands before us. There is only the ‘mere shadow’ of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.” (31)

“The only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.” (31-32)

Concurring Opinion: Justice Thomas

“I write separately to emphasize that the Court’s opinion does not resolve two issues related to Kennedy’s free-exercise claim.” (1)

“First, the Court refrains from deciding whether or how public employees’ rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public.” (1)

“We have held that ‘the First Amendment protects public employee speech only when it falls within the core of First Amendment protection — speech on matters of public concern.’ It remains an open question, however, if a similar analysis can or should apply to free-exercise claims in light of the ‘history’ and ‘tradition’ of the Free Exercise Clause.” (1-2)

“Second, the Court also does not decide what burden a government employer must shoulder to justify restricting an employee’s religious expression because the District had no constitutional basis for reprimanding Kennedy under any possibly applicable standard of scrutiny…A government employer’s burden therefore might differ depending on which First Amendment guarantee a public employee invokes.” (2)

Concurring Opinion: Justice Alito

“Petitioner’s expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities. When he engaged in this expression, he acted in a purely private capacity.” (1)

“The Court does not decide what standard applies to such expression under the Free Speech Clause but holds only that retaliation for this expression cannot be justified based on any of the standards discussed.” (1)

Dissenting Opinion: Justice Sotomayor

“This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct.” (1)

“The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.” (1)

“The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location.” (1-2)

“Kennedy recounted that he initially prayed alone and that he never asked any student to join him. Over time, however, a majority of the team came to join him, with the numbers varying from game to game. Kennedy’s practice evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with ‘overtly religious references,’ which Kennedy described as prayers, while the players kneeled around him.” (4)

“The District reiterated that ‘all District staff are free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities’…To avoid endorsing student religious exercise, the District instructed that such activity must be non-demonstrative or conducted separately from students, away from student activities.” (6)

“While Kennedy’s letter asserted that his prayers ‘occurr[ed] on his own time after his duties as a District employee had ceased,’ the District pointed out that Kennedy ‘remain[ed] on duty’ when his prayers occurred ‘immediately following completion of the football game, when students are still on the football field, in uniform, under the stadium lights, with the audience still in attendance, and while Mr. Kennedy is still in his District-issued and District-logoed attire.’ The District further noted that ‘[d]uring the time following completion of the game, until players are released to their parents or otherwise allowed to leave the event, Mr. Kennedy, like all coaches, is clearly on duty and paid to continue supervision of students.” (8)

“This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.” (13-14)

“Taken together, these two Clauses (the Religion Clauses) express the view, foundational to our constitutional system, ‘that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State.’” (14)

“First, government neutrality toward religion is particularly important in the public school context given the role public schools play in our society. ‘The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny,’ meaning that ‘[i]n no activity of the State is it more vital to keep out divisive forces than in its schools.’” (15)

“The State ‘exerts great authority and coercive power’ in schools as a general matter ‘through mandatory attendance requirements.’ Moreover, the State exercises that great authority over children, who are uniquely susceptible to “subtle coercive pressure.” (15)

“Given the twin Establishment Clause concerns of endorsement and coercion, it is unsurprising that the Court has consistently held integrating prayer into public school activities to be unconstitutional, including when student participation is not a formal requirement or prayer is silent.” (16)

“Permitting a school coach to lead students and others he invited onto the field in prayer at a predictable time after each game could only be viewed as a post-game tradition occurring ‘with the approval of the school administration.’” (17)

“The District Court found, in the evidentiary record, that some students reported joining Kennedy’s prayer because they felt social pressure to follow their coach and teammates. Kennedy told the District that he began his prayers alone and that players followed each other over time until a majority of the team joined him, an evolution showing coercive pressure at work…That BHS students did not join Kennedy in these last three specific prayers did not make those events compliant with the Establishment Clause. The coercion to do so was evident.” (18-19)

“But existing precedents do not require coercion to be explicit, particularly when children are involved. To the contrary, this Court’s Establishment Clause jurisprudence establishes that ‘the government may no more use social pressure to enforce orthodoxy than it may use more direct means.’” (19)

“Constitutional rights, however, are not absolutes. Rights often conflict and balancing of interests is often required to protect the separate rights at issue (noting that ‘the presence of countervailing interests . . . is what makes a constitutional question hard, and what require[s] balancing).” (20)

“First, as to Kennedy’s free speech claim, Kennedy ‘accept[ed] certain limitations’ on his freedom of speech when he accepted government employment.” (20)

“The last three games proved that Kennedy did not intend to pray silently, but to thrust the District into incorporating a religious ceremony into its events, as he invited others to join his prayer and anticipated in his communications with the District that students would want to join as well.” (22)

“Finally, the Court acknowledges that the Establishment Clause prohibits the government from coercing people to engage in religion practice, but its analysis of coercion misconstrues both the record and this Court’s precedents.” (30)

“The Court’s suggestion that coercion must be ‘direc[t]’ to be cognizable under the Establishment Clause is contrary to long established precedent. The Court repeatedly has recognized that indirect coercion may raise serious establishment concerns, and that ‘there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.’” (30)

“The question before the Court is not whether a coach taking a knee to pray on the field would constitute an Establishment Clause violation in any and all circumstances.It is whether permitting Kennedy to continue a demonstrative prayer practice at the center of the football field after years of inappropriately leading students in prayer in the same spot, at that same time, and in the same manner, which led students to feel compelled to join him, violates the Establishment Clause. It does.” (33)

“Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.” (35)

Supreme Court strengthens religious expression as indispensable to life in a diverse republic
By / Jun 27

WASHINGTON, D.C., June 27, 2022— The Ethics & Religious Liberty Commission of the Southern Baptist Convention applauds the Supreme Court’s 6-3 decision to protect the “Free Exercise and Free Speech Clauses of the First Amendment” in the case, Kennedy vs. Bremerton School District. 

This decision is a religious expression victory for teachers and coaches to privately express their deeply-held beliefs while working for schools. 

Brent Leatherwood, ERLC’s acting president, said the Supreme Court’s decision was “rightly determined.”

“As any Christian knows, our faith is deeply personal and rightly shapes every aspect of our lives. We live out our faith in any number of ways, both privately and publicly. Today’s case centered on the latter and the Supreme Court rightly determined that an individual employed by a school does not forfeit his or her constitutional right to free expression simply by entering ‘the schoolhouse gate’ or, as it were in this case, the field of play.

“Moreover, today’s decision reaffirms another aspect of constitutional law: our First Amendment rights travel together. We, and many others, have long held that religious liberty is our nation’s first freedom and that it bolsters and strengthens other foundational rights. The Court today strengthened this perspective by writing that the clauses of free expression, establishment and free speech are all complementary. If it were not already clear enough, this Court views religious liberty as a bedrock right in our free republic.”

The ERLC was involved with briefs at the petition for certiorari stage and before the Supreme Court on the merits, in support of a Washington state high school football coach who was suspended for kneeling and praying on the field after games. The brief urged the high court to accept the case and reverse the Ninth Circuit Court of Appeals’ decision that Joseph Kennedy’s act of praying – ultimately joined by some players — constituted a government establishment of religion.

In 2018, ERLC joined eight other groups in a brief that called for Supreme Court review and repudiation of the Ninth Circuit in the case, but the justices declined to grant the request at the time. The case returned to federal court and has successfully worked its way back through the judicial system.

How to be a better patriot
By / Dec 21

Before looking at affection, friendship, and erotic love in his classic study The Four Loves, C. S. Lewis begins by examining our love for the sub-human. And one of these is love of country.

“We all know that this love becomes a demon when it becomes a god. Some begin to suspect that it is never anything but a demon. But then they have to reject half the high poetry and half the heroic action our race has achieved. We cannot keep even Christ’s lament over Jerusalem. He too exhibits love for his country. (22)

Over the course of the rest of the chapter, Lewis sets out the good aspects and the ways patriotism can be twisted to become demonic. Among the former is the admonition that our love of country is rooted in our love of place, and often a particular place with particular people. I love America, but when I picture America, it is Tupelo, Mississippi, that comes to mind, with its downtown area, the local coffee shop I frequent, or the small church I attend.  

It is unlikely that I will love “Americans” in the abstract whom I have never met, if I do not love those who I meet every day. Lewis also points out that this love of home can twist itself into a sense of superiority such that we actually come to believe that no other country, place, region, is as good or worthwhile as our own. Further, when one assumes they are a superior nation there is a duty to either civilize (by which he means expand our own borders) all the world or to think that any action taken against an inferior country is acceptable. The love of home, when made a god, quickly becomes a demonic force of destruction. 

Adam Wyatt’s Biblical Patriotism: An Evangelical Alternative to Nationalism is a welcome contribution to the study of patriotism because it combats these dangers and emphasizes the good qualities. Drawing on both history and biblical exegesis, Wyatt grounds his study in the concept of loyalty and the sense of virtue. Seeing patriotism as a middle road between the dangers of nationalism and cosmopolitanism, Wyatt argues for a definition that is not only good for society, but for Christians. 

The dangers of nationalism and cosmopolitanism

Before looking at the middle road of patriotism, it is helpful to examine the twin dangers that Wyatt identifies for the Christian. On one extreme is the ditch of nationalism, which aligns with Lewis’ definition of a patriotism that sees our nation as superior to all others. Recently, scholars have pointed out the unique dangers that this poses to Christianity and the ways that it corrupts the gospel truth of a universal church. When the nation is held up as all important, it becomes a cruel god, bending all to the will of the state and baptizing any action taken as moral and just. 

However, Christians must not slide into the opposite error of thinking that national borders are irrelevant: cosmopolitanism. We all live in a global society where the actions of one country, particularly a large or influential one such as China, Russia, or the United States, have implications for the rest of the world. However, Christians must not buy the lie that our native country does not matter. We are born into a particular place and time, and though national borders may change, they are consequential. 

Both nationalism and cosmopolitanism take an important aspect — love of the culture and particularity of our country or our interconnectedness to the rest of the world — and magnifies it to such a degree that virtue becomes a vice. By contrast, Wyatt argues that patriotism, when rightly defined and understood, functions as the golden mean between these twin errors. 

Loyalty and particularity

Patriotism is not an amorphous term for a love of country, synonymous with fuzzy feelings when “My Country ‘Tis of Thee” is played. Rather it is grounded in the virtue of loyalty and finds its expression through identification. Loyalty functions as the key to Wyatt’s argument because it is loyalty to a particular country of which the individual is a citizen that defines patriotism. Thus, though I spent a summer in the United Kingdom and came back raving about how much I loved it — much to the annoyance of anyone who would listen — I was not patriotic. I was affectionate. I was even obsessive (there was definitely a Union Jack in my luggage that made its way to my college apartment wall). But I was not patriotic because I was not linked in a meaningful way to the U.K.. I had neither the rights nor duties that come with citizenship.

By contrast, patriotism is anchored in a country that we, in Wyatt’s language, “identify as our own.” This identification begins with loyalty and is expressed through our attachment and appropriation of the country as ours. Thus, patriotism is not static, but it develops over time and in response to stimuli. I was in elementary school, but I still remember the sudden mass appearance of American flags everywhere — banks, classrooms, front doors, even gas stations — after the 9/11 terror attacks. Similarly, in the wake of tragedy, such as the Boston bombing or natural disasters, it is not uncommon for Americans to speak as if they themselves were attacked or harmed in their support or charitable action for those who were. They identify with the victims because of a shared national identity. 

It is fair to raise the question of who we can see as part of that shared identity in this polarized time. If citizens live in different Americas based on what we watch on HGTV or listen to NPR, whether we eat at Cracker Barrel or Whole Foods, or buy our clothes from Walmart or Bloomingdales, one wonders if we actually can see ourselves as having a shared story and identity. And for those who have been systematically excluded from the national story, it is understandable to push against all that comes with the national story and culture. 

However, as Lewis points out in his examination of patriotism, it is how we reckon with those stories that reveals whether we have a godly or demonic patriotism. Patriotism does not ignore the sins of the past, so long as we do not confuse the saga that we tell with our history. National narratives are to call us, ostensibly, to our better selves. And to say that they are saga, to use Lewis’ term, is not to imply that they are falsehoods, because many are true. But rather it recognizes that they are meant to instill a particular kind of virtue in the citizenry, one that is absolutely — as both Lewis and Wyatt acknowledge — in keeping with the Christian’s duty to the nation. It is the power of story and saga that can uphold virtue and urge us to sacrifice our own desires for the well-being of our country. 

And even as we tell the story, Americans especially, should recognize that there is always a reason to expand the story of who counts and is worthy of emulation. In previous generations, that meant recognizing the full dignity of enslaved Africans, granting the right to vote to women, or not prohibiting someone from elected office because of their religion. Now, it likely means recognizing that the person on the other side of the political aisle is an American as well and not our enemy. In all situations, it is recognizing the full dignity of the person and extending to them, on the basis of our patriotic values, the rights which are foundational to our nation. The story may change and include new actors, but its call to deeper virtue remains constant. 

Conclusion

In a moment when Christians are debating the proper relationship between church and state and what it means for faithful Christians to exist in a particular nation at a particular point in time, Wyatt’s Biblical Patriotism reminds us that our love and loyalty to country is a good and biblical truth. We may at times rebuke the nation with a jeremiad, just like the Puritans of the 1600s, and we may remind the nation of its failure to live up to its promises and ideals, just like the civil rights leaders of the 1960s. But we do not give up a love for the nation. 

As Christians, we hold our love for the nation secondary to our love for the kingdom of God, and we acknowledge our place as citizens of the kingdom. But this does not mean that we are apathetic to the concerns of our nation. Rather, it frees us to live well as good citizens. As public theologian Russell Moore has argued, “We are Americans best, when we are not Americans first.” Adam Wyatt’s study of patriotism is a great reminder of this reality and of the importance of a love of country for those who are sojourners on this earth. 

Explainer: How should Christians think about France’s “separatism” bill?
By / Feb 16

Today, the French parliament will vote on a controversial religious law called, “the Law to Uphold Republican Principles.” This 459-page bill has received dramatic public interest, and over 1,700 proposed amendments have been filed to the bill. The intent of this bill is to “combat the threat of Islamist radicals,” whom French President Emmanuel Macron has called “the enemy of the Republic.” 

In October 2020, French middle-school teacher, Samuel Paty was beheaded by the father of one of his students after discussing the freedom of expression in his classroom. Mr. Paty gave his students a chance to leave the classroom before showing them the cartoon at the heart of the 2015 attack on the Charlie Hebdo newsroom, which satirically depicted the Prophet Mohammed. 

Mr. Paty’s murderer posted a photo and message on Twitter addressed to French President Macron. Within minutes, police identified and killed the perpetrator of Mr. Paty’s murder. This attack comes after multiple terrorist attacks over the past six years, including the Charlie Hebdo attack, an attack during Bastille Day, an attack at a Christmas market, and a stabbing at the Nice cathedral. Since 2015, more than 250 people have been killed in these attacks. 

Mr. Paty’s murder has inspired the introduction of this new bill by French lawmakers that takes aim at the spread of radical Islam within the country. 

Some Muslim leaders support the legislation, including the French Council of the Muslim Faith, a large French Muslim organization, which called the bill “useful, [and] necessary to fight those who want to instrumentalize associations” in ways that undermine French society. The secular, progressive Foundation for Islam said that the bill is “unjust, but necessary.” These statements from Muslim organizations illustrate the real challenge radical Islam presents for France, even for the Muslim community. 

What are French evangelicals saying about this bill?

French evangelicals have been critical of the bill. The National Council of Evangelicals in France (CNEF) has been working to highlight the problems the bill would create. Clément Diedrichs, general director of CNEF, told Christianity Today, “It’s definitely a serious situation. Laïcité [the French concept of separation of church and state] should protect the free organization of religious groups, but this law will allow the prevention of religious expression in society.”

Although the bill is not targeted at French Protestants or Evangelicals, they do have legitimate cause for concern. France’s Interior Minister, Gérald Darmanin, said earlier this month that “Evangelicals are a very important problem,” qualifying later in the interview that evangelicals are “obviously not [a problem] of the same nature than the Islamism that makes terrorist attacks and deaths.” Darmanin appears to take issue with those who believe the law of God is supreme over any other man-made law. As Darmanin said in a separate interview, “We cannot discuss with people who refuse to write on paper that the law of the Republic is superior to the law of God.”

Ultimately, the bill raises questions central to the French conception of secularism—the idea of laïcité—which is focused on public neutrality on religion and the place of religion in the public square. To simplify and translate this complex idea into American terms, laïcité is similar to the U.S. Constitution’s Establishment Clause: “Congress shall make no law respecting an establishment of religion.” By strengthening the separation of church and state, this bill would force religion even further from the public square. Diedrichs, the CNEF leader, said, “We have a unanimous position that recognizes the potential risks this law represents for religious liberty. No one is content with this law.”

Indeed, French evangelicals have raised a number of concerns with the bill. The bill would create a requirement that churches re-register with the government every five years, increasing the possibility that a church’s registration may be denied. In addition, churches and ministries would be required to publicly declare financial support from outside of France, including support of missionaries and direct support to churches from overseas. It should be noted that French evangelical churches are overwhelmingly self-supported. For evangelical families, permission to pursue home-based education would be required every year, and parents would not be permitted to choose to homeschool because of religious motivation.

Why is this bill a concern?

There is no question that France faces a difficult situation with the presence and spread of radical Islam and that efforts to curtail extremism are warranted and needed. Still, the “separatism” bill would create new restrictions on the rights to freedom of thought, conscience, and religion and would strengthen the French conception of separation of church and state in significant and harmful ways. Article 1 of the Constitution of France states: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.”

France’s leaders should honor its own principles and its international commitments by ensuring that freedom of thought, expression, and religion are maintained for all peaceful religious communities. The Bible teaches that government authority is granted by God (Rom. 13). But government authority is limited and does not include the right to restrict religious beliefs or override a person’s conscience.

It appears that this bill would do just that, reversing the proper order of the law of man and the law of God in the process. Christians should oppose this clear example of government overreach that would trample upon the consciences of millions of French citizens and pray this bill does not pass as introduced. The ERLC will continue to monitor this bill and work with our partners in France and in Europe on these important issues. 

How do we rightly relate church and state?
By / Oct 26

Editor’s Note: This article is part of our primer series on Christians ethics where a respected leader and thinker recommends and gives a summary overview of a book that helps orient readers to a certain aspect of ethics and philosophy. This series is designed to equip the local church to engage foundational texts of Christian ethics. Find the entire series here. 

For much of history, Christians have understood the church and the state as two orders given as good gifts by God. Rightly relating the two is no easy task. Historically there are two temptations regarding the proper relation of the church to the state. 

Absolutely apart? 

First, some are tempted to hold church and state absolutely apart. In doing so, they tend to conflate the relationship between church and state with the relationship between religion and politics, extending to political life a strict separation from religious convictions. This view aspires to a vision of secularism which sees the task of living together peacefully as requiring political discourse to be areligious. It may even see institutional religion as toxic to the preservation of a well-functioning pluralist society. 

Some Christians may even embrace this view, holding that we ought not bring our religious convictions with us into the public square. They may do so out of the belief that arguing for policies or visions of justice framed directly from our Christian commitments may inappropriately compel others to accept religious beliefs against their will.

Other Christians may possess a vision of the Christian faith as a fundamentally private affair, which has very little bearing on the construction of a political order. After all, did not Jesus himself state, “Render to Caesar the things that are Caesar’s, and to God the things that are God’s” (Mark 12:17, ESV)? 

The problem with this view is that it holds that political arrangements can be constructed from a neutral standpoint of reason, without recourse to religious conviction. Secularism is often self-possessed of such naivete, failing to recognize that secularism is often a shroud for a thinly veiled religiosity itself. In fact, its religious convictions about human reason or even identity being are sacred sources of truth in themselves. It is a religion of an imminent order, seeing no place for reference to a transcendent God.

Accordingly, when we seek to answer how the church and state ought to be related, we must start from the belief that religious convictions are fundamental and prior to the shaping of any worldview.

Too closely together? 

The second pull regarding the relation of church and state is to hold them too closely together. Again, this is to conflate the religious and the political with the church and state, though this position sees politics as rightly ordered only when it is subservient to the church. This was the predominant temptation of Christians for over a thousand years of Western history.

This position rightly sees the Christian faith as having a direct bearing on the shape of our civic life. However, it wrongly sees the church as possessing the God-given authority to dictate to the state what this should be. 

Our Christian convictions certainly ought to play a pivotal role in our approach to political life. Subsuming the state under the power of institutional religion misunderstands the nature and scope of the church’s earthly authority, taking for itself the power to compulse by force that which belongs to King Jesus alone, when in reality its public power is to compel.

How should we seek to navigate between these twin pulls toward secularism and ecclesialism? Saint Augustine can help us avoid both pitfalls by leading us to ask, “What are we, as humans?” and “What time is it, in God’s telling of history?”

Augustine on worship and sacred history

Augustine, Bishop of Hippo in North Africa, is almost unparalleled in the breadth of his influence on Christian thought. His theology, however, was hardly systematic, and his approach to social order was highly complex.

In his Saeculum: History and Society in the Theology of St. Augustine, Robert Markus provides one of the most lucid and helpful summaries of Augustine’s understanding of social order. In the book, Markus’ aim is to explore what Augustine thought about the nature and purpose of society and how the church should understand its relation to it. 

To have a sense of the paradigm Markus proposes, it is helpful to have a cursory understanding of Augustine’s magnum opus, The City of God. Written over the course of 16 years at the beginning of the fifth century, Augustine’s book is part defense of the Christian faith against pagan critics, and part argument for how Christians ought to understand God’s history in the world and Christians’ place in it. At the heart of the work lies his belief that human beings at their most basic level are worshipping creatures. They are made to worship God, but because of sin they worship elements of creation as idols. 

Because Christians are never fully sanctified until the final resurrection, the city of God can never be fully realized here and now. Christians will always live as pilgrim citizens of the heavenly city as they go about their lives in the earthly city.

When we look at the whole of human history there are really only two groupings of people, each constituted by its ultimate love. The city of God is defined by the love of God, and its citizens are all those who have been born again by his grace, and therefore can properly order their affections toward him. The earthly city is really an anti-city, a shadow arrangement characterized by disordered love and idolatry. Neither city is fully synonymous with any one particular grouping of people in history, but both exist alongside one another in any given time and place.

Because Christians are never fully sanctified until the final resurrection, the city of God can never be fully realized here and now. Christians will always live as pilgrim citizens of the heavenly city as they go about their lives in the earthly city. As sojourners seeking to be good neighbors in the earthly city, Augustine calls Christians to understand what we as humans fundamentally are (i.e., worshippers), and to use God’s creation in a way that exhibits and leads to increasingly more worship of him. 

This forms the initial foundation of Augustine’s social though. To complete it, Markus argues that we must also understand Augustine’s approach to history and its ultimate meaning. For Augustine, there are two types of history: sacred and secular history. 

Sacred history includes all of God’s work in the world concerning the coming of Christ, his work of redemption on the cross, his resurrection and his imminent return. The events of sacred history are the only historical happenings which bear ultimate meaning, and the reason for this is that these events are the only ones which come to us with authoritative interpretation of their significance through God’s self-revelation in Scripture. We can know why they happen and what purpose God is working toward in them because God has told us so. 

Secular history includes everything else, all occurrences of ordinary human life. Secular history only has significance in reference to sacred history, and this characteristic impels us to ask, “What time is it, in relation to sacred history?” We now live in the in-between time after Christ’s resurrection and ascension, and before his second coming. Because there are no defining markers of sacred history to give meaning to the present age, and because it is one which Scripture makes clear the city of God and the earthly city will exist co-mixed until Christ’s return, ours is an age marked by radical ambiguity. We cannot point to specific events or to political arrangements and pronounce an authoritative explanation of their meaning and purposefulness in God’s plan.

Church and state in the saeculum

How then is the church to understand its relation to political orders in the present saeculum, an ambiguous age between the Christ events? As Markus argues, for Augustine the church is not to see itself as synonymous with the state and its authority to wield coercive power, which for now rests in the domain of the earthly city, nor is the church to see itself as unrelated to it. Rather, the church is to see itself as uniquely concerned with the cultivation of the spiritual lives of the citizens of the city of God. 

Likewise, the state ought not to see itself as serving at the behest of the church or inaugurating Christ’s earthly end-times kingdom in the same way as the church. Instead, the state’s purpose in God’s plan is to preserve social order for all, citizens of the heavenly and earthly city alike. Therefore, while its grounding is religious, as any sense of justice must appeal to God and the proper worship of him, its operation cannot be to further any one religion, and thus recreate the earthly city prematurely into the heavenly one by force.

Augustine’s career as a church leader may throw doubt on the degree to which he held to this understanding, such as when he drew on state power to put down disruptive elements of the Donatist church faction. Markus argues, however, that his actions operate with some form of internal coherence in which he saw Christian individuals, rather than the offices of the state they held, as leveraging their influence to direct actions which would be seen as a blurring between matters of church and state.

Regardless, the imperative in Augustine’s thought is clear: in this time between the times church and state should remain clearly apart in their authority and social responsibilities. However, because Christians are to fill the offices of the state in order to uphold justice and enact laws for the common good, religion and politics must always be intermixed and mutually influencing. The state’s job is to ensure there is freedom to do so, while the church’s job is to fill society with the type of Christians who give guidance on the proper use of such freedom.

Update: Capitol Hill Baptist wins in District Court
By / Oct 10

Late Friday night, Oct. 9, Judge Trevor N. McFadden issued a memorandum opinion in Capitol Hill Baptist Church v. Bowser, et al granting the church’s motion for injunctive relief. This opinion from the U.S. District Court for the District of Columbia is a victory for both religious liberty and public health because it clarifies the government’s responsibility to honor these fundamental rights during the pandemic.

At the end of September, the Capitol Hill Baptist Church (CHBC) in Washington, D.C., filed a lawsuit in the U.S. District Court for the District of Columbia seeking relief from D.C. Mayor Muriel Bowser’s current order regarding places of worship. The congregation is working to find a way to legally and safely gather outdoors for services in Washington during the ongoing pandemic. For more on the case, see this explainer.

It should be noted that the church has taken the public health precautions seriously. For months, meeting outside in Virginia, the church has followed all relevant public health guidance of wearing masks and keeping six feet distance between households during the service. CHBC, like the vast majority of churches throughout the nation, recognize the perils of this pandemic and honor the God-ordained responsibility of mayors and governors and federal officials to protect people from a dangerous virus.

Highlights from the court’s opinion

At this point in the church’s litigation, the court has heard oral arguments from both sides, reviewed the statement of interest submitted by the United States Department of Justice, and the various amicus briefs submitted by interested parties. The Friday night ruling granted the church a preliminary injunction which forbids the Mayor from prohibiting CHBC from conducting outdoor worship services in the District of Columbia with the precautions of masks and social-distancing. The preliminary injunction is in force until the case goes to a full trial, which could take longer than the pandemic will last, thus making the conflict moot. At this point, the District has 30 days to appeal the decision.

It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.” Hebrews 10:25.” (quote from court ruling)

The following are highlights from Judge McFadden’s opinion, beginning with his explanation of the merits behind this religious liberty victory:

“The Court determines that the Church is likely to succeed in proving that the District’s actions violate RFRA. The District’s current restrictions substantially burden the Church’s exercise of religion. More, the District has failed to offer evidence at this stage showing that it has a compelling interest in preventing the Church from meeting outdoors with appropriate precautions, or that this prohibition is the least-restrictive means to achieve its interest. The Court will therefore grant the Church’s motion for injunctive relief.”

To understand the church’s argument under the Religious Freedom Restoration Act (RFRA), this section from the court’s opinion is helpful.

RFRA provides that the government may not “substantially burden” a person’s exercise of religion, “even if the burden results from a rule of general applicability.” “The only exception recognized by the statute requires the government to satisfy the compelling interest test,” that is, “to demonstrate that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (citations omitted)

For its case under RFRA, the church needed to prove that the District’s regulations constitute a “substantial burden” on its exercise of religion. CHBC argued that its conviction to meet as an entire congregation in one gathering was burdened by the Mayor’s limit of 100 people. For more detail on that argument, see our explainer on the case when it was filed.

While the District did not dispute the sincerity of CHBC’s religious convictions for gathering in person, they argued that the church could meet by other methods, “hold multiple services, host a drive-in service, or broadcast the service online or over the radio,” as others in the District have done this year. The court responded to the District’s argument.

“But the District misses the point. It ignores the Church’s sincerely held (and undisputed) belief about the theological importance of gathering in person as a full congregation. . . . The District may think that its proposed alternatives are sensible substitutes. And for many churches they may be. But “it is not for [the District] to say that [the Church’s] religious beliefs” about the need to meet together as one corporal body “are mistaken or insubstantial. . . . It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.” Hebrews 10:25.”

Once the church proved a “substantial burden” on its religious exercise, the onus then moved to the District to prove its order achieves their public health purpose through the “least restrictive means” possible. Judge McFadden noted that RFRA requires more from the District than its generalized public health interests to maintain such a restriction against CHBC’s request. On whether or not the District’s actions meet that higher standard outlined in RFRA, Judge McFadden writes:

The District has failed to meet its burden at this stage, as it presented little to no evidence that it has a compelling interest in applying its restrictions to ban the type of services that the church wishes to hold. And some of the scant evidence that does appear in the record cuts against the District’s arguments.

The evidence cutting against the District’s arguments are the government’s actions in support of the mass protests during the summer. Judge McFadden discussed how these First Amendment protected gatherings have been treated differently.

No matter how the protests were organized and planned, the District’s (and in particular, Mayor Bowser’s) support for at least some mass gatherings undermines its contention that it has a compelling interest in capping the number of attendees at the Church’s outdoor services. The Mayor’s apparent encouragement of these protests also implies that the District favors some gatherings (protests) over others (religious services).

Now months into this public health crisis, the District has had the opportunity to determine with greater particularity the risks presented by COVID-19 and the restrictions necessary; sweeping justifications perhaps more suitable to the early stages of a public health crisis will not suffice. On the record here, the District has not shown that it has a compelling interest in applying its 100-person limit to the Church’s proposed outdoor services.

Judge McFadden also discussed the significant work CHBC’s leaders did before filing suit to amicably resolve this conflict with Mayor Bowser and the District. The church sought resolution with the District multiple times over the course of months, as the Court opinion notes.

The Court likewise rejects the District’s argument that the Church cannot show irreparable harm because of its delay in seeking injunctive relief. The District contends that the Church waited “more than six months after the first Mayor’s Order restricting mass gatherings” to sue. But as the District admits, the Church was not twiddling its thumbs during that period—it “discussed with the District alternatives to full- congregation meetings” and “twice sought administrative relief in the form of an exemption from the Mayor’s Orders.” This is the sort of behavior that courts ordinarily encourage— indeed, sometimes require, . . . The Church will not now be punished for seeking an amicable resolution before rushing to the courthouse.

Judge McFadden concludes his opinion on this particular case in a way that also offers an overview of our country’s current situation.

The Church has consistently represented that it will take appropriate precautions such as holding services outdoors, providing for social distancing, and requiring masks. As explained, the District has not put forward sufficient evidence showing that prohibiting a gathering with these precautions is necessary to protect the public.

The COVID-19 pandemic has undoubtedly presented unique challenges to governments, which are tasked with balancing the public safety and religious freedom. The Court acknowledges the difficult decisions facing the Mayor here. But Congress set rules for this sort of balancing when it enacted RFRA.

The Church has shown that it is likely to succeed in proving that the District’s actions impose a substantial burden on its exercise of religion. For its part, the District has not shown that it is likely to prove a compelling interest in prohibiting the Church from holding outdoor worship services with appropriate precautions, or that its restrictions are the least restrictive means available to achieve its public health objectives.

This federal opinion echoes the argument ERLC President Russell Moore has made often during the COVID-19 crisis. Responding to a Supreme Court decision on California’s pandemic order, Moore said, “This pandemic is a perilous time. We need to emerge from it with both our public safety and our First Amendment intact. We can do that, but only if elected officials and the courts take seriously the matters both of public health and of constitutional freedoms.”

Thankfully, this preliminary injunction allows Capitol Hill Baptist Church and the District of Columbia to take both seriously.

Explainer: Religious liberty and Capitol Hill Baptist Church’s lawsuit in Washington, D.C.
By / Sep 23

This week, the Capitol Hill Baptist Church (CHBC) in Washington, D.C., filed a lawsuit in the U.S. District Court for the District of Columbia seeking relief from D.C. Mayor Muriel Bowser’s current order regarding places of worship. The congregation is working to find a way to legally and safely gather outdoors for services in Washington during the ongoing pandemic. Here is a statement from CHBC, made available on their website, regarding their efforts to begin gathering again in D.C.

Russell Moore, president of the ERLC, commented on the news of CHBC’s filing, “Capitol Hill Baptist Church has served as a model for all of us in engaging this matter with the governing authorities. They sought out a peaceable resolution and have consistently met and exceeded public health guidelines. The District of Columbia, sadly, has chosen to act inconsistently and arbitrarily, treating houses of worship by standards other than those necessary to maintain public health, thereby coming into conflict with First Amendment protections. Let’s pray that the District will quickly reconsider their actions, or that the courts will do so for them, and that the church and the government in our nation’s capital can both serve their neighbors freely in their respective spheres.”

Why is the church pursuing litigation?

Currently, Washington is in Phase Two of its COVID-19 guidance plan in which “places of worship can operate services and activities with up to 100 people or up to 50% of their capacity, whichever is fewer, with strong safeguards and physical distancing.” These limits apply to both indoor and outdoor services. The church is currently meeting outdoors each Sunday evening on the property of a sister church in Virginia because Mayor Bowser’s guidance prohibits a congregation of CHBC’s size from gathering outdoors in Washington.

What has the church done to try to resolve the situation before litigation?

CHBC last met indoors for a Sunday service in early March. In the days that followed, the church elders were in touch with the Washington government and, by that next weekend, made the decision to cancel all in-person Sunday services beginning March 15. The coronavirus had arrived in the United States, and the pandemic precautions were, rightly, accelerating.

Then, in June, as more was known about the virus and the safety of wearing masks, social distancing, and being outdoors, the church filed for a waiver from the city to gather for services outdoors. After not receiving an official response from the mayor’s office, despite many conversations with other city officials, the church resubmitted for a waiver earlier this month in September.

The resubmittal was done after the church established a record of meeting safely outdoors in Virginia with the precautions of wearing masks and social distancing. Unfortunately, on Sept. 15, though the city thanked CHBC for its efforts to mitigate the risk of spread of COVID-19 in their proposed gathering plans, the waiver request was denied.

What are the legal arguments?

The church’s legal complaint is that Washington’s guidance restricting religious gatherings is “violating its rights under the First and Fifth Amendments to the United States Constitution and the Religious Freedom Restoration Act.”

A critical note from the church’s filing is that “for CHBC, a weekly in-person worship gathering of the entire congregation is a religious conviction for which there is no substitute.” The filing then gives extensive explanation of the significance of the Sunday gathering for the life of the church, both throughout 2,000 years of church history and for CHBC specifically. 

The church argues that the mayor’s order applies more stringent rules to religious gatherings than it does to other similar social gatherings like restaurants or other outdoor gatherings, including protests. Large groups of people with a communicative purpose are permitted to gather outside without a size limit but churches of CHBC’s size are not. This is central to the church’s complaint—the district is treating similar gatherings differently. In Washington’s Phase Two guidance, the church’s complaint notes that, “houses of worship, which have a constitutional right to gather, are the only entity expressly encouraged to continue meetings virtually.”

CHBC makes clear that “the church takes no issue” with Mayor Bowser’s support of and participation in the protests and gatherings such as in June when part of 16th Street NW was turned into “Black Lives Matter plaza” or in August when people commemorated the March on Washington anniversary on the steps of the Lincoln Memorial. The church supports such exercise of First Amendment rights but takes exception to the government’s decision to favor only certain gatherings because, “the First Amendment protects both mass protests and religious worship.”

What is the church asking the court to do?

The church is asking the court to give CHBC permission to meet outdoors, with social distancing, masks, and other appropriate precautions. CHBC is asking the court to restrain the government from “prohibiting [CHBC] from physically gathering as a congregation in the District of Columbia if conducted with appropriate social distancing practices.”

How can Christians pray for CHBC and Mayor Bowser?

Christians can pray for this congregation in the nation’s capital who, after six months of public health prohibitions, is seeking to gather safely for services in the city where the church covenanted in 1878. The members of CHBC are making this claim as free citizens in a free state with constitutional protections for religious exercise and with a specific intention not to bypass all the means available to find resolution. Christians can pray for a quick and just resolution.

Christians can also pray for Mayor Bowser and her team of legal and health officials serving this great city. We all recognize the severity of this moment and are deeply thankful for the public authorities responsible for protecting people from COVID-19.

As we pray, we should consider that this week the pandemic reached a new mark as more than 200,000 of our fellow Americans have died from this virus. Such a statistic is difficult to grieve because it’s challenging to even comprehend. And yet, many people, myself included, have friends and family members who have or are now battling for their lives after contracting this virus. As the people of God we know that in such battles, we need our church communities. We need to pray together, provide meals for one another, support the nurses and doctors and pharmaceutical professionals providing healthcare, and yes, we need to gather together as the church.

Within this strange year, opportunities abound for Christians to love their cities and for churches to be a sign of the confidence the people of God have in Christ. In acting safely and speaking wisely, churches can meet regularly to share the gospel with a world burdened by a once-in-a-generation pandemic. It’s not too much for churches to ask that their government would treat them equally under the law.

Brent Leatherwood on contact tracing, church, and civic leadership during COVID-19
By / Jul 14

Brent Leatherwood and Travis Wussow wrote a statement of principles on contact tracing during the pandemic. They join Jeff Pickering to discuss how church leaders and civic leaders should view themselves as co-equal partners in combating the spread of the virus.

Resources from the Conversation

Why is religious liberty so important to Baptists?
By / Apr 20

Some have suggested in recent days that a crisis is no time to be concerned about things like religious freedom. As COVID-19 has spread around the globe and continues to wreak havoc here in the United States, many have criticized those who’ve displayed concern that governments not trample upon the rights of believing citizens during this time. Arguments have been made elsewhere about the necessity of pastors and churches working in good faith with elected leaders and public health officials to mitigate the spread of the virus, but it seems appropriate to say something in defense of religious liberty. After all, for many, including Baptists like myself, religious freedom is not some ancillary or abstract concept, but a key distinctive of our faith, practice, and history.

Religious liberty lies at the heart of the Baptist tradition. Since the earliest days of the movement, Baptists have found themselves defending the necessity of separation of church and state. Beginning in England in the early 17th century, our forebears dissented to the idea of a state church and rejected the legitimacy of any formal ties between matters civil and ecclesial. English Baptists like John Smyth and Thomas Helwys and the American Baptists Roger Williams and John Clarke after them were pioneers in advancing the cause of religious freedom in their respective countries. 

Among the many Baptist forebears who stood in defense of religious freedom, one of my personal heroes is Isaac Backus. A Baptist from New England living during the American Revolution, Backus is best remembered for his tireless advocacy of religious freedom in the fledgling United States as the leader of the Warren Association’s Grievance Committee. On behalf of the churches of that association, Backus stood in defense of men and women whose religious convictions were violated by various governments in New England. But my favorite memory of Backus, however, is not actually about him. 

Though Backus was already convinced of his Baptist beliefs and had rallied to the cause of religious liberty, the event that galvanized him into action and enabled him to maintain his zeal for the cause actually involved his mother, Elizabeth, a 54-year-old widow. Because Puritan ministers in New England were supported through taxation, Baptists and other dissenters were forced to pay taxes in support of religious views they objected to. When Elizabeth, who was also a Baptist, refused to pay the tax, she was jailed. And she remained so for nearly two weeks. But as a result of his mother’s mistreatment, Backus renewed his commitment to the cause of religious freedom. For the rest of his life, he defended the rights of others to worship God according to the dictates of their consciences. 

I’m drawn to that story because it illustrates something important about Baptists’ commitment to the doctrine of religious liberty. Religious liberty protects not the strong but the weak. It is meant to protect not the powerful but the marginalized. Citizens living in the United States today enjoy broad protections when it comes to religion. The First Amendment guarantees that we are able to freely exercise our religious beliefs without fear of punishment or interference at the hands of government. But it has not always been this way. And Baptists, who once were fined, jailed, and beaten here on American soil simply for practicing religion in ways the state deemed unacceptable, played a critical role in establishing that freedom. It should be easily understood, therefore, why Baptists and others endeavor to protect these precious freedoms even amid the current crisis.

Indeed, this is familiar territory. Baptists were born dissenters. Because they rejected the idea of a state church, by default they were at odds from the beginning not only with the religious establishment but with the state itself. And for good reason. Baptists have always recognized that a person’s spiritual beliefs and ultimate commitments are sacred, and they’ve refused to conform to the standards of state-sanctioned religion. The state has no authority to use religion in order to amass power or enforce its will. As the American Baptist John Leland wrote, “Every man must give an account of himself to God, and therefore every man ought to be at liberty to serve God in that way that he can best reconcile it to his conscience. If government can answer for individuals at the day of judgment, let men be controlled by it in religious matters; otherwise let men be free.”

Defending religious freedom is not ultimately some mechanism for self-protection or self-preservation; religious liberty is about protecting the rights of others, particularly the weak, vulnerable, and marginalized. 

And this conviction stands at the center of the Baptist commitment to religious freedom. The Scriptures declare that each person will one day stand before God to give an account of his or her life (Rom. 14:10-12). No one will answer on behalf of another. And for this reason it is critical for the state, which wields the power of the sword, to preserve the rights of every person to live and worship God according to conscience (Rom. 13:1-7; 1 Pet. 2:13-14). No obedience, whether rendered to the state or any other authority, will excuse us on the day of judgment. Each of us will answer only to God. Convinced of this, Baptists have, for centuries, defended the right of every person to freely live and worship. 

Still, people will sometimes ask why Christians, who literally worship a man who was willfully crucified at the hands of the state, are unwilling to sacrifice their religious freedom. Why not simply suffer as Christ did? Is it not the case that mounting such a defense about individual rights and liberties is un-Christian? I think the question is understandable. But as the example of Elizabeth Backus demonstrates, defending religious freedom is not ultimately some mechanism for self-protection or self-preservation; religious liberty is about protecting the rights of others, particularly the weak, vulnerable, and marginalized. 

As is often said, the kinds of speech or belief most in need of protection are those that are out of step with the zeitgeist or majority opinion. Christians living in a hostile culture recognize the necessity of these protections not only for ourselves but for others like us who are unable to countenance the quickly changing moral and sexual mores of our day. So, for the sake of all, we maintain our support of this fundamental doctrine.

Baptists have a long memory. We may be numerous at present, but only a few hundred years ago Baptists were a small and despised minority, suffering violence at the hands of the government. Today we remember that history as we fight to protect religious freedom not merely for our own sake, but for the good of our neighbors. Even now, in the midst of a pandemic, Baptists are justified in their concern about encroachments upon these rights. Historically, Baptists have taken a posture of peaceful cooperation toward the state in times of crisis. And we have rightfully done so once again. But even so, Baptists must recognize how easily the state can, and often has, overstepped its bounds.

This leaves us in a precarious position. Few among us anticipated the magnitude of change the coronavirus pandemic would bring about. As we confront the situation before us, we must do so with sober and measured realism. State and local governments have taken aggressive action to mitigate the spread of the virus. In certain cases, churches have been unfairly targeted by these measures—actions met with public outrage and legal action that was swift and well deserved. But as we weather the current storm, it is imperative for defenders of religious freedom to recognize the gravity of the moment. 

The virus is still an existential threat. And churches remain critical allies in the government’s efforts to safeguard public health. So even as we fight to protect these liberties, we must proceed with caution and recognize the volatility of this situation. The incursions upon religious freedom we’ve seen so far have been local and isolated. There is little evidence suggesting the threat is more widespread. As we navigate this crisis, the last thing our nation needs right now is an insurrection of churches. Fortunately, we are not now being forced to choose between submitting to those in authority or protecting our fundamental rights. But even so, one of the benefits of being reared in the Baptist tradition is a constant awareness of potential threats to the free exercise of religion. For the sake of all, in our religious practice and worship we must remain absolutely free. And just as our forebears did, Baptists and other defenders of liberty will continue to ensure it.

Are churches being taxed?
By / Dec 6

You may have read that ERLC president Russell Moore is calling on Congress to repeal a new tax on nonprofits, including houses of worship like the churches of the Southern Baptist Convention. As Moore wrote in a recent Wall Street Journal op-ed, “A little-noticed provision in the Tax Cuts and Jobs Act of 2017 now looms over faith communities in America, raising serious questions about religious freedom and the First Amendment.” If news of this tax comes as a surprise to you and your church, you are not alone in your concerns.

The new tax is found in Section 512(a)(7) of the Internal Revenue Code, and it created a policy by which all nonprofits are taxed for the cost of parking and transportation benefits provided to employees. The intention of the new policy seems to be parity in the treatment of employee benefits between for-profit and nonprofit entities. However, the ERLC believes the impact on nonprofits as a whole and houses of worship, in particular, were both unanticipated and unintended.

In effect, Section 512 (a)(7) directs the IRS to collect a federal tax on houses of worship for the first time in American history. This is the reason a number of representatives and senators are working toward a repeal of this policy. Broad agreement is rare in Congress, but this is an issue with significant consensus. Most offices on Capitol Hill do not believe the IRS should levy taxes on their constituents’ churches.

Large legislative initiatives like the 2017 tax reform almost always come with some unforeseen consequences that are later corrected through the regular order of technical fix amendments. Rep. Mark Walker (R–N.C.) and Sen. James Lankford (R–Okla.), who both voted for the 2017 reform, offered legislation earlier this year to repeal the tax. The Walker and Lankford legislation, titled the Lessening Impediments From Taxes for Charities Act, or LIFT Act, would strike 512(a)(7) from the code. The author of last year’s reform himself, House Ways and Means Committee Chairman Kevin Brady (R–Texas), recently offered a technical fix for repeal through a manager’s amendment to a recent tax bill. These leaders are joined by many members on both sides of the aisle in support of repealing this tax.

A practical reason for repeal is the cost of this policy. According to the Joint Committee on Taxation, this tax is estimated to extract $1.7 billion from nonprofits over the course of a decade. This tax would take funds for the federal government that would otherwise be used to serve local communities and in so doing impose heavy administrative burdens on smaller organizations that have never had to file 990-T tax forms. The cost of compliance costs alone could exceed the total revenue collected from this policy.

More fundamentally, the tax policy presents a break from American precedent. The proper separation of the domains of church and state is an enduring ideal of this nation. The American people have historically refrained from directing the government to tax houses of worship in order to preserve religious liberty and prevent coercion and abuse of state power. If the federal government is granted the authority to tax houses of worship, these two separate domains will be financially enmeshed in a way that threatens religious liberty.

As Chief Justice John Marshall famously stated in the 1819 McCulloch v. Maryland ruling, “the power to tax involves the power to destroy.” Russell Moore made the ERLC’s commitment to religious freedom clear when he wrote in the aforementioned op-ed, “tax laws don’t exist to give special privileges for religious organizations. They are meant to recognize that, unlike in other places and at other times, the state here doesn’t regulate, or subsidize, the worship of God.” The tax code ought to uphold, not undermine, this fundamental principle.

This issue is a top priority for the ERLC for the remainder of the 115th Congress. The ERLC continues to call on Congress to repeal this tax on nonprofit parking and transportation benefits through any appropriate vehicle before the end of the year.