By Micah Schwartzman, Richard Schragger, and Nelson Tebbe
The separation of Church and state is supposed to prevent government favoritism of religion in the United States. For most of the past century, the Supreme Court interpreted the establishment clause of the First Amendment to mean that government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another.” Under this principle of disestablishment, at the very least, the government cannot give special privileges to religious organizations beyond what is available to similarly situated nonreligious groups.
But the past few months have seen a near-complete collapse of this principle at the national level, at least with respect to government funding of religion. Under the Payment Protection Program, which has allocated $669 billion in subsidies to support small businesses during the coronavirus pandemic, the government has extended funding to churches and other houses of worship. This program is unprecedented in terms of the sheer amount of money involved and the religious nature of the activities, including payment of clergy salaries, that the government is subsidizing.
As we recently wrote in The New York Times, this funding of faith-based organizations has received little attention, in part because of the sense that churches, like other groups, have been harmed by government-ordered shutdowns. If churches have to comply with public-health restrictions like other businesses and nonprofits, then they should also be compensated, the thinking goes. In short, they should receive equal treatment when it comes to PPP funding.
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