America’s (lack of) separation between church and state, explained

A Vox reader asks: If we have “separation of church and state,” why do we give religious schools tax exemption? How come religious schools get government funding? Why was Trump allowed to campaign on religion and publicly sell Bibles? Why does it say “In God We Trust” on our money? Why is “under God” in the Pledge of Allegiance?

The concept of “separation of church and state” isn’t quite as ironclad as you may think.

The First Amendment prohibits laws “respecting an establishment of religion,” a provision that many Americans believe should create a firm wall of separation between church and state. But the Constitution also does not enforce itself. In the United States, we rely on judges and Supreme Court justices to determine what the Constitution means and to apply it to individual cases.

That means that the amount of church and state separation in the United States tends to ebb and flow depending on who sits on the Supreme Court.

The idea that the government should play no role in funding or encouraging religion probably hit its high water mark in the mid-20th century. As the Supreme Court said in Everson v. Board of Education (1947), “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” That suggests that it is unconstitutional to fund any religious activity with money collected from taxes.

Beginning in the Nixon administration, however, the Court started to move steadily rightward. Nixon filled four of the nine seats on the Supreme Court, though most of his nominees were relative moderates compared to the increasingly ideological justices chosen by Presidents Ronald Reagan, George W. Bush, and Donald Trump. 

Today, the Republican Party has a 6-3 supermajority on the Supreme Court, and when church and state cases have come before them, all six of those Republicans have behaved exactly how you would expect members of a political movement closely aligned with conservative Christianity to behave. That means that the Court is now actively tearing down whatever barrier used to exist between church and state.

Why is religion in public schools and on American money? 

Let’s start with  Carson v. Makin (2022), in which the Republican justices concluded that, if a state offers vouchers to help some students pay for private education, it must allow those vouchers to be spent on religious schools. The Court also recently announced that it will hear two other cases, out of Oklahoma, which are likely to require states to fund religious charter schools.

If you’re looking for an explanation for this shift, you will not find it in the Constitution, as the text of the First Amendment has not changed. You will find it instead within the shifting personnel within the Supreme Court.

The question of whether taxpayers must fund religious schools is a hotly contested one and is likely to hinge on which political party controls the Supreme Court for the foreseeable future. But it’s worth acknowledging that there are people of faith in both political parties. Americans of all political persuasions care a great deal about their churches, mosques, temples, and synagogues. 

Indeed, that may explain why Trump — who, as a private citizen campaigning for office, had a First Amendment right to say anything he wanted to say about religion — chose to center religion in his campaign and even sell Bibles. The Bible is literally the most popular book in the world, and millions of American voters look fondly upon politicians who align themselves with it.

And this reality also shapes how, say, US tax policy functions.

There’s never been a serious effort to strip religious charities, including houses of worship, of their tax-exempt status. And there probably never will be, because the people who attend those houses of worship are voters, and they would likely rise up in outrage if such a thing were attempted.

That said, the Constitution has also long been understood to forbid religious discrimination. So these tax exemptions must be offered equally to people of all faiths. If a church can claim a tax exemption, a mosque must also be able to claim that same exemption on the same terms.

Similarly, there are some largely ceremonial or symbolic nods to religion — such as the use of the phrase “In God we Trust” on US coins, or the opening of many legislative sessions with a prayer — that, as the Supreme Court said in Marsh v. Chambers (1983), are “deeply embedded in the history and tradition of this country,” a history and tradition that — especially early on — was intertwined with Christianity. The courts have left many of these symbolic acknowledgments of religion in place, in part because attempting to dislodge them is unlikely to be successful.

To understand why, consider a controversy that briefly flared up during the second Bush administration. In 2002, a federal appeals court ruled that the inclusion of the words “under God” in a public school’s daily recitation of the Pledge of Allegiance violates the Constitution. That decision triggered a massive backlash among members of Congress, including a bipartisan proposal to amend the Constitution to permit “a reference to God in the Pledge of Allegiance or on United States currency.”

This controversy died down after the Supreme Court ruled, in Elk Grove Unified School District v. Newdow (2004), that the appeals court never had jurisdiction to issue its decision in the first place. But the whole incident stands as a warning to Americans who want to drive symbolic references to religion out of government altogether. While there may be plausible legal arguments for this position, law is ultimately subordinate to politics, and those politics favor religion — especially Christianity.