Supreme Rule for Christian Nationalism

“I believe this notion of the separation of church and state was the figment of some infidel’s imagination.”

With that declaration, the pastor of First Baptist Church in Dallas, Texas, defended his partisan campaigning for Ronald Reagan in 1984. In his sermon on the eve of the Republican National Convention in Dallas, W.A. Criswell, who was also a former president of the Southern Baptist Convention, implicitly endorsed Reagan’s reelection. From the pulpit, Criswell praised Reagan as “the best president we ever had.” Then a few days later Criswell offered the benediction at the Republican gathering on the night Reagan gave his acceptance address for his renomination.

CBS Evening News asked Criswell how he justified his politicking from the pulpit of First Baptist and the podium of the RNC in light of the separation of church and state. That’s when he blamed an unnamed infidel for the concept. We’re not sure which one. Perhaps he meant Thomas Jefferson (who did cut up his New Testament), but the author of the Declaration of Independence borrowed that concept of church-state separation from Baptists like Roger Williams, John Leland, and Thomas Helwys. 

Yet, as Criswell played a significant role in the movement that was at that moment pushing the nation’s largest Protestant denomination rightward and into more active partisan politics, he needed to excommunicate those historic Baptist figures. After all, the constitutional principle that most stands in the way of the agenda of Christian Nationalism is the idea of church-state separation, especially as articulated in the First Amendment clause barring government establishment of religion.

But the phrase “separation of church and state” isn’t in the Constitution, someone might interject. And by someone we mean lots of critics of the idea today. It’s a true comment but not a clever one. That exact phrase cannot be found in the Constitution, but that doesn’t mean it’s not a constitutional principle. You also won’t find the phrase “religious liberty” in the document either, but it’s clearly a constitutional precept. Similarly, you won’t find the word “trinity” in the Bible, but that doesn’t mean it’s not a biblical doctrine.

Because of the impact of church-state separation on our society, there’s been a significant political effort to chip away at the wall between the two. The perspective of Criswell appears to be gaining traction not only within his denomination, but also with Christians more broadly and even with justices on the U.S. Supreme Court.

On Tuesday (June 21), the latest shot came as six justices ruled in Carson v. Makin to push state funding of private religious schools. As we consider the problematic ruling and how it shifts First Amendment jurisprudence, we should also revisit the case that seems to most energize the effort to undo church-state separation. After all, the 60th anniversary of the Court’s landmark decision on government prayers in public school will be this Saturday (June 25). Six decades later, the high court has moved substantially toward the perspective of Christian Nationalism (with one justice even dismissing the “so-called” separation of church and state).

The U.S. Supreme Court building is seen behind security fencing on May 5, 2022. (Jose Luis Magana/Associated Press)

In this issue of A Public Witness, we travel back to 1962 to consider the Court’s case on prayer in public schools (including how Word&Way and other Christians praised the ruling at the time). Then we return to the present to analyze the arguments in Carson v. Makin before peering into the future to consider where this dangerous trip might be taking us as a nation.

Prayer for Relief

The common mythology among conservative Christians today is that the Supreme Court banned prayer in public schools with its 1962 Engel v. Vitale decision. This rhetoric emerged recently after the school massacre in Uvalde, Texas, as some argued the solution wasn’t enacting lifesaving gun control measures but forcing kids to pray.

“It’s time to arm the teachers and bring back prayer in our public schools,” declared Oklahoma pastor Jackson Lahmeyer, who is running a longshot primary campaign against Republican U.S. Sen. James Lankford since the conservative senator dared to vote for the certification of President Joe Biden’s electoral victory.

Similarly, Robert Jeffress, the current pastor of First Baptist Church in Dallas and a mentee of W.A. Criswell (and a prominent supporter of Donald Trump), mentioned the Engel decision as he appeared on a local talk radio program to discuss the Uvalde massacre on the day after the shooting.

“In many ways America is reaping what it’s sown. For these last 60 years, we’ve been trying to eradicate the mention of God from the public square,” Jeffress added. “I don’t think you can ignore God and disobey God and fail to teach children that there is a God and not suffer the consequences of this.”

And yet, the Supreme Court didn’t actually ban prayer in public schools. They don’t have that power. As James Dunn, a longtime leader of the Baptist Joint Committee for Religious Liberty, liked to quip, “As long as there are math tests, there will be prayer in schools.” We both attest to that as we silently prayed before and even during exams! Nor did the justices, as some like to claim, kick God out of public schools. That would be a pretty puny god to be ordered out of a building by nine people in black robes.

What the justices in the Engel decision actually did was ban the use of government prayers where students in New York were compelled or pressured to participate. In other words, the Court embraced true religious liberty! And that’s why many Christian leaders at the time actually praised the ruling for recognizing the sacred nature of prayer and the importance of the Establishment Clause. Like H.H. McGinty, then the editor of Word&Way.

“We believe the court was right and justified in its decision,” he wrote in the July 19, 1962, issue of our print publication. “The New York prayer decision may well be hailed as a landmark in a never-ending search to strike a proper balance between church and state.”

Part of page 2 of the July 19, 1962, issue of Word&Way.

McGinty also noted that individual prayer was still allowed since the ruling only dealt with “governmentally-produced prayer forced upon the children.” And he highlighted how other denominational leaders had overwhelmingly supported the decision, including mainline Protestant leaders and his own Southern Baptists. He quoted then-SBC President Herschel Hobbs on the ruling: “The Supreme Court of the United States in its decision has struck one of the most powerful blows in our lifetime, maybe since the Constitution was adopted, for the freedom of religion in our nation. We should be eternally grateful to them. … [The ruling’s] one of the greatest blessings that could come to those of us who believe in the absolute separation of church and state.”

Hobbs and McGinty weren’t outside the mainstream. The Southern Baptist Convention even passed a resolution in 1964 praising this approach to public education. Similarly, the Republican Party’s platform that same year urged efforts toward “preserving the traditional separation of church and state.”

But with the Religious Right’s political mobilization in the late 1970s and early 1980s, the issue of school prayer became a hot topic for raising funds and whipping up votes. Bob Terry, the editor of Word&Way at that time, wrote in the March 13, 1980, issue to criticize such efforts by politicians like Sen. Jesse Helms of North Carolina and religious leaders like SBC President Adrian Rogers (the first in the new rightward shift). After taking care to explain what the Supreme Court did — and didn’t — say in the Engel case, Terry argued the Court was right. He added that the efforts of Helms and Rogers were “threats to the basic volunteeristic nature of religious worship.”

Unfortunately, the religious-political movements Terry critiqued have found more successes lately. And that includes from the very Court they used to rail against. 

Maine Argument

Justice Sonia Sotomayor predicted the future. Back in 2017, she feared that the Court’s decision in Trinity Lutheran v. Comer “leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

The Trinity Lutheran ruling focused on a Missouri program that provided grants to nonprofits for playground resurfacing but excluded religious entities from participating. That exclusion had come from a state provision barring government aid to religious houses of worship or religious schools (a historic church-state separation provision that nearly 40 states across the country similarly have in their state constitutions). But the Court’s majority deemed the program unconstitutional for denying a public benefit to organizations solely because of their religious status. 

In a contentious footnote, Chief Justice John Roberts explained the case was narrowly focused: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” That profession of limited scope expired after just five years. 

In the new Carson v. Makin case, the Court faced a related question about state aid to religious entities — but this time it wasn’t about using tire scraps for safer playgrounds but about funding sectarian indoctrination. Because of its rural population, many school districts in Maine do not provide public education beyond elementary grades. Instead, taxpayer dollars fund student attendance in neighboring public school districts or at eligible private schools. For more than four decades, Maine law explicitly limited that assistance to “nonsectarian” schools because of respect for the Establishment Clause. 

Parents of children who attended private Christian schools (and thus didn’t receive state funding) sued over that restriction, claiming it violated their free exercise rights by penalizing them for holding religious views. Both the District and the Appeals Court sided with Maine. But the Supreme Court overturned that in a 6-3 decision that reflected the Court’s partisan divide. Roberts again wrote the majority opinion, which was joined by the other five conservative members.

A sketch of the U.S. Supreme Court justices listening to oral arguments in a case on Dec. 1, 2021. (Dana Verkouteren via AP)

In a significant shift from Trinity Lutheran (and the related case of Espinoza v. Montana), the Court expanded protections afforded by the Free Exercise Clause with regards to public benefits from religious identity to religious use. That is, the Court’s majority essentially overruled Establishment Clause concerns in the name of a Free Exercise claim even though the parents were not prevented by the state from choosing to send their children to a religious school. 

Not only must religious organizations now be eligible to receive resources from generally available public programs, but they cannot be prohibited from using them to advance their religious mission. Thus, Maine taxpayers who are non-Christians or pro-LGBTQ rights will soon find their tax dollars funding socially-conservative Christian secondary schools that actively evangelize students and discriminate in their admissions process. In essence, the government cannot “discriminate” against religious schools in giving funding intended for public education even while those very schools can discriminate against would-be students who have a right to an education.

This is not insignificant. As Sotomayor noted in her dissent, “In just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.” Thus, the decision proved her prophecy in her Trinity Lutheran dissent correct.

“Today, the Court leads us to a place where separation of church and state becomes a constitutional violation,” she added. “With growing concern for where this Court will lead us next, I respectfully dissent.”  

Church-state advocates expressed similar concerns in response to the Carson decision. 

“The Court’s decision to require Maine to fund religious instruction threatens our nation’s commitment to religious freedom and the understanding of church-state separation that protects it,” argued Holly Hollman, BJC general counsel. “Carson v. Makin follows a recent trend away from treating religious institutions in distinct ways to avoid government involvement in religious matters.”

Just the Next Step

Many scholars and media outlets are struggling to understand and explain this new direction of the nation’s high court. One interpretation is that this shift reflects a more “pro-religion court.” Yet, as Vanity Fair editor and former media reporter Michael Calderone noted, that frame denigrates the religious identities of Sotomayor and other justices defending a more robust interpretation of the Establishment Clause by implying they are anti-religion. It also ignores the past and present support we documented by Christians for the separation of church and state.

Rather than a “pro-religion court,” we instead see a majority of Supreme Court justices accepting the arguments of Christian Nationalism, wherein (a narrow variety of) Christians deserve a privileged place in American society. Motivating this ideology is the myth that America is a “Christian nation” now under attack by secularists and other enemies who, among other sins, supposedly kicked God out of public schools. 

Calling the logic employed by the majority in Carson “perverse,” Washington Post opinion writer Jennifer Rubin asserted, “It is a sign of the court’s inability to distinguish constitutional principles from the desires of Christian nationalists who seek to use the power of the state to impose their views.” That is not only more accurate than suggesting this is “pro-religion” or “pro-religious liberty,” but it also helps identify the larger agenda. The goal isn’t more religious liberty for all. The decades-long effort leading to this case has a vision of privileging one version of Christianity by slowly dismantling the main constitutional obstacle: the wall of separation between church and state. 

That’s why this ruling matters far beyond the state lines of Maine. As BJC Executive Director Amanda Tyler said in April, “Carson v. Makin is probably the most significant religious freedom case of the [Supreme Court’s] term.” Her concern then was about “how narrowly written the opinion is — whether it applies to the peculiar facts of the Maine public school system or whether the court is paving the way for much more government funding of religious schools and, therefore, religion.” The expansive nature of the ruling left many convinced that Tyler’s fears, like Sotomayor’s, would come true. 

We need look no further than the Trinity Lutheran case Sotomayor warned about five years ago to see the danger of what comes next. Despite Roberts insisting at the time — in the footnote he’s now overturned — that the case was narrowly focused just on resurfacing of playgrounds, the ruling was quickly used by the Trump administration to justify all sorts of policies providing funding and other privileges to religious groups, including government funding for houses of worship and exemptions to nondiscrimination laws.

The more radical ruling in Carson will similarly be stretched beyond the limits Roberts tried to spell out. We already see those efforts at work. For instance, Erin Hawley, a senior appellate counsel at Alliance Defending Freedom (and wife of Republican U.S. Sen. Josh Hawley), argued in a World magazine column that the “groundbreaking” decision “is a huge win for school choice as parents all across the country will be free to use otherwise available education benefits for private religious schools that teach according to their faith tradition.” And another conservative Christian attorney also argued this ruling “effectively neutered” the nearly 40 state constitutional provisions barring taxpayer aid to religious schools and perhaps even houses of worship. If the Establishment Clause can be overruled with the Free Exercise Clause, then there’s a huge pot of government gold up for grabs at the end of the rainbow.  

Like the Trinity Lutheran ruling, the Carson decision not only chips away at church-state separation but will be used to further advance that decades-long crusade. And the justices might add to that with their ruling any day in Kennedy v. Bremerton — a case involving public school prayer! If those pushing this agenda of Christian Nationalism continue to find success, we could see the erosion of one of democracy’s foundational commitments — true religious liberty for all, which requires a robust separation of church and state.

We respectfully dissent. 

As a public witness,

Brian Kaylor & Beau Underwood