U.S. Supreme Court Asked to Restrain Government From Meddling in Church Affairs, Abide by First Amendment’s Establishment Clause

December 10, 2020

WASHINGTON, D.C. — The Rutherford Institute has asked the U.S. Supreme Court to keep the government from meddling in church affairs. In weighing in before the Court in Episcopal Church v. The Episcopal Diocese of Ft. Worth, Rutherford Institute attorneys warn against a trend in which state courts have attempted to second-guess church decisions on inherently religious matters by relying on so-called “neutral principles.” In their amicus brief, Institute attorneys argue that such rulings violate the First Amendment’s strict prohibition on government interference in religious matters. The case involves an attempt by the Texas Supreme Court to apply so-called “neutral principles” to a dispute by factions of the Episcopal Church over who should own and control church property.

Attorney Tejinder Singh of Goldstein & Russell, P.C., in Bethesda, Md., assisted The Rutherford Institute in advancing the arguments before the Supreme Court. 

“The Constitution establishes a neutral playing field for all viewpoints and requires the government to remain equally impartial and not favor or disfavor one religion over another, or favor or disfavor religion over non-religion,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “When it comes to matters involving church doctrine, church governance and the internal workings of religious institutions, however, the government needs to stay clear of that wall of separation between church and state, and resist the urge to meddle altogether.”

The Episcopal Church is a hierarchical religious denomination organized to include over 100 local dioceses which must accede to the authority of the General Church. In response to a 1979 Supreme Court ruling allowing, but not requiring, state courts to apply “neutral principles” of law in resolving property disputes arising from schisms within churches, the Episcopal Church amended its canons to make clear that all property held by Episcopal Church entities is held in trust and for the General Church. 

In the mid-2000’s, doctrinal disagreements led to factions of a diocese in Ft. Worth and a parish in San Angelo to break away from the Episcopal Church. In connection with the splits, the breakaway factions took steps, such as amending articles of incorporation, to take control of church property, including houses of worship.  When the breakaway factions refused to recognize the Episcopal Church’s claims to the property in accordance with church canons, the Episcopal Church brought two legal actions in Texas state courts to recover the property.

Although a trial court in each case found that Texas law requires deference to the decision of the Episcopal Church that church property belonged to the factions loyal to the church, in appeals brought by the breakaway factions the Texas Supreme Court held that the lower courts should apply “neutral principles” of law to resolve the property disputes and reversed.

After the U.S. Supreme Court refused to hear the Episcopal Church’s appeal, the case was sent back to the state courts, which again applied “neutral principles” to deny the Episcopal Church’s claims to the property.  The Episcopal Church again sought review by the U.S. Supreme Court, arguing that lower courts are inconsistent in their approach to resolving church property disputes and that the “neutral principles” method of doing so is inconsistent with the First Amendment’s protection of religious liberty.

In filing a brief in support of the Episcopal Church’s petition, Institute attorneys argue that permitting a secular court to decide these issues without deference to church authorities is tantamount to replacing church governance with the state or federal government, a proposition that threatens free exercise as well as the establishment of religion.      

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms. 


The amicus brief in The Episcopal Church v. The Episcopal Diocese of Ft. Worth


We Need Christian Nationalism Because Religious Neutrality Has Failed

Our religious liberty never proceeded from attempts at religious neutrality. It came precisely from the privileged position that Christianity has historically held in America and in the West.

We Need Christian Nationalism Because Religious Neutrality Has Failed

Aug 14, 2019 By Matthew Cochran

A gaggle of representatives from theologically liberal denominations recently issued a statement against Christian nationalism in America, claiming that it threatens both American democracy and the ability of our religious communities to live in peace.

To be sure, Christian nationalism is an extremely odd place to find the threat to religious freedom in a world that increasingly makes demands like “shut up and wax that woman’s b-lls.” But the irony goes deeper than that. It’s not some stroke of blind chance that lead to religious freedom in the Christian West—it was, in fact, due to our Christian faith.

To be sure, although I know self-described Christian nationalists, I’m aware of no organized political movement for this statement to oppose and so, no standard definition. Nevertheless, I have never found the label to apply to some of what the statement opposes—calls for theocracy, a conflation of American and Christian identities, and certainly not a “cover for white supremacy,” which the statement tosses in to poison the well. I’ve no interest in contending on behalf of such things.

Nevertheless, until “Christian nationalism” coalesces into something more definitive, in my experience the phrase best describes something much simpler:  a rejection of the religious neutrality of the late 20th century in favor of 1) a recognition that Christianity has had a unique and privileged influence on our American heritage that overshadows the influences of other faith traditions, 2) a conviction that a Christian understanding of the world should predominate over other worldviews in American civic life, and 3) an understanding that a nation that successfully excised or sufficiently diluted this influence could no longer be called “American” in the same sense as before. Although more general than what the statement condemns, this understanding would actually encompass many Americans, whether they accept the label or not.

Regardless of its other issues, the statement’s crosshairs certainly fall squarely on this simpler understanding as well. The statements condemns the preference for one religion over another, expresses the irrelevancy of religion for civic standing, and contends for all manner of religious neutrality in American civic life.

But our religious liberty never proceeded from attempts at religious neutrality. It came precisely from the privileged position that Christianity has historically held in America and in the West.

Early States Established Churches with Tax Support

The First Amendment forbids the establishment of a state church in the United States, but it in no way imposes the incoherent burden of religious neutrality on our civic institutions, nor demands that the right to free exercise of religion end when one crosses from private life into the public sphere. We are already experiencing the erosion of religious liberties that these erroneous presumptions have caused, with Christian business owners and officials forced to promulgate ideas they abhor and facilitate celebrations that are incompatible with the teachings of Jesus Christ.

Today, when the American left speaks about religious freedom at all, it speaks in terms of “freedom of worship” rather than of free exercise. But freedom of worship is nothing more than the right to go into a private building and follow one’s preferred liturgy on any day of the week so long as it is out of the public view.

The right of free exercise of religion cannot end there, for no religion on earth ends there. Life is a series of choices in which we each decide what’s most important to us. As we order these priorities, every knee eventually bows to something more important than the rest—the “god” we consider to be the Most Important Thing. Whatever the specific details of one’s god, the very nature of a god is that it is supreme—it lays claim to one’s entire life rather than merely one’s private life.

This is true regardless of whether one follows a traditional religion or even refers to one’s highest value as a “god” at all. Even the hedonist, whose god is personal pleasure, does not leave his worship of pleasure behind when he enters the public sphere. If he refrains from certain pursuits in the public eye, it is only because such restraint will net him more pleasure in the long run. Pleasure therefore remains the god that dictates his public activities.

So it is also with the Christian, the Muslim, the secular humanist, and the utilitarian. So when the follower of a god enters into civic life—as anything from a simple voter all the way up to president—he does not and cannot cease following that god. He will instead look to what that god demands of someone who holds the positions he occupies.

Different gods make different demands. One of the reasons theological liberals are so blind on this issue is their ignorant presumption that, at their root, all religions are basically the same—that they all worship the same God, proclaim the same general values and ideals, and merely have different cultural trappings or modes of expression. In such a fantasy, a neutral pluralism is conceivable, but reality is a different matter.

Although there is only one God, there are many gods (i.e., idols) in this world. The extent to which a person will support or even accept things like secular democracy and religious pluralism depends on that person’s god.

Apply This to Today’s Public Life

What then does that mean for American democracy and religious freedom? It means neither can ever be religiously neutral. Some gods demand such things; some gods merely tolerate them; and other gods abhor them. To embrace these things as worthy of our support and protection and prioritize them over other concerns is to favor some gods and therefore some religions above others.

Rather than submitting to a fantasy of religious neutrality, Christian nationalism accepts and adapts to this reality. After all, the Christian faith is the root from which our form of religious freedom grew, and the American nation is the heritage in which it is enfleshed. The positive forms of secularism and religious liberty that had been enjoyed in America grew out of the specifics of Christianity.

Christians, for example, have always held that there is a fundamental distinction between worldly government and the kingdom of heaven. Even the statement acknowledges this. You can see it in the teachings of Jesus—that his kingdom was not of this world, and that we should render unto Caesar the things that are Caesar’s and to God the things that are God’s.

You can see it in St. Augustine, when he wrote of the City of Man and the City of God. You can see it in Martin Luther’s Two Kingdoms theology. You can see it in the Church of Rome’s doctrine of the Two Swords. Different Christian traditions have certainly differed as to how these two realms relate to one another, and some have separated them far more than others. Nevertheless, the distinction has always been there. Civil government can be disentangled from the church precisely because of that Christian distinction.

Every Religion Doesn’t Do Separation of Church and State

But not every religion makes that distinction. Islam, for example, is both a religion and a political ideology. It makes no real distinction between the two. The idea of the Ummah that Muhammad left his followers—a united religious community that transcends tribe and would one day encompass the entire world—has nothing within it to encourage secularism.

Even the simple idea that church and state have distinct authorities and responsibilities is by no means religious neutral.

Political conquest is Muhammad’s legacy because he explicitly commanded it of his devotees, and he established a sharia to which everyone is supposed to submit. According to Muhammad, a pertinent distinction among religions in the world is between Dar al Islam and Dar al Harb (the House of Islam and the House of War).

So in the end, even the simple idea that church and state have distinct authorities and responsibilities is by no means religious neutral. It blatantly gives Christianity a seat of privilege in the way government is organized, and it does so at the expense of some other religions.

The same can be said of American religious freedom. Americans have deliberately refrained from establishing a state church, and we allow extremely broad freedoms for the exercise of religion and the expression of religious ideas. This was a natural outgrowth of Christian ideas, since in Christianity, salvation comes through faith in Jesus Christ—a faith that cannot be compelled by force. Accordingly, from the Christian perspective, there is very little point in using the state to enforce religious adherence.

Now, I’m neither claiming that Christians have always respected this reality nor that we’re the only ones who have. But this is precisely where the nationalism comes into the mix.

Western Toleration Comes from Christianity’s Growth

The Western tendency to tolerate different creeds proceeded from the blood and chaos that different Christians inflicted on one another during the Reformation and Counter-Reformation. It took considerable time and effort to accept this understanding and begin teaching our governments to loosen their grip on the religious habits of their citizens. This effort hinged on the experiences of many different groups of Christians who sought out places where they could freely adhere to their creeds.

So our religious freedom is not simply an abstract ideal floating in the ether, but a heritage—a specifically Christian one. It is precisely English Christians of that sort who learned this very Christian lesson and brought it with them to this land, where they eventually grew into their own Christian nation. It was also those Christians who decided to extend that Christian freedom to the believers on other creeds.

Our religious freedom is not simply an abstract ideal floating in the ether, but a heritage—a specifically Christian one.

Nevertheless, extending that freedom to other faiths never made it religiously neutral. On the contrary, we embedded our religious understanding of such freedom into the way we governed—blatantly privileging Christianity over other religions.

After all, in most other religions, goodness—however it may be conceived—proceeds from a person’s works as much or more than from his faith. State requirements to make the right sacrifices, participate in the right ceremonies, or live in the proper manner make a great deal more sense in other religions. Likewise, religions that demand the infidels be slaughtered wherever they may be found tend to be far less willing to allow those infidels the same kind of freedoms.

So even when America decides to allow the free exercise of all religions, that very decision privileges religions like Christianity, which are more focused on faith than on following specific laws. This can be seen in the way that free exercise has been judged through our history. In a post-9/11 world, it’s become abundantly clear that even flying planes into buildings can be an exercise of religion.

Where Religious Neutrality Ends

Nevertheless, though we put no prohibition on free exercise per se, we always drew the line at publicly immoral behaviors even when those behaviors are also religious duties for some. Certain faiths, for example, have explicitly allowed or encouraged bigamy, but for most of our history, this was never seriously considered an allowable matter of free exercise.

Not every religion sees the matter the same way. Not every religion even has a natural law tradition.

In decisions like that, the state was not and cannot be morally neutral, any more than it was or can be religiously neutral. In every decision, it weighs one set of goods against another and decides which is of more value.

In America, the weight of those past decisions have always been rooted in the values of the Christians who founded and cultivated this nation. Their substance is indelibly colored by Christianity. Our Declaration of Independence hinges the entire matter of independence on the “Laws of Nature and of Nature’s God” and ascribes our rights to endowment by the Creator.

These are by no means religiously neutral statements. They are not sectarian, grounded as they are in the language of natural law, but they are nevertheless grounded in a Christian understanding of that natural law. Not every religion sees the matter the same way. Not every religion even has a natural law tradition.

Common Objections Don’t Hold Water

Some would object to this line of thought, claiming that our nation really founded as much by deists rather than Christians. There were certainly a few prominent ones in the mix, but it doesn’t weaken my case in the slightest.

No nation is beholden to religious neutrality, no matter what freedoms it grants.

Deism itself was always an attempt to possess a Christian heritage without possessing a Christian faith. What’s more, the reason deism went defunct so quickly is that this attempt was almost immediately found to be a fool’s errand. The only remaining progeny of deism are those who returned to Christianity and those who proceeded down the road to atheism. Inasmuch as deists contributed to the founding of this nation, they were still operating under the inertia of the Christian heritage they had received.

Others would claim that our religious liberty is no longer Christian because many non-Christian nations have also provided measures of religious freedom. This is true, and I’m quite pleased that they’ve culturally appropriated religious liberty from the Christian West. I believe my heritage to be of value, so I think it’s great when others learn from it.

But that appropriation does not change where our own liberty came from. Neither does it change the fact that these other nations have modified religious liberty according to their own religious understandings. Israel, for example, allows for a great deal of religious liberty, but it is no more religiously neutral than America is. After all, simply believing that Jesus Christ is the messiah voids the right of return granted by Israel to other ethnic Jews. No nation is beholden to religious neutrality, no matter what freedoms it grants.

The Habit of Toleration Can Go Too Far

To be sure, our more recent history has seen a remarkable shift away from our Christian heritage and its moral wisdom. Under the guise of religious neutrality, too many Christians have been tricked into withholding their good judgment from matters of state. This has led to some profound changes, but there’s nothing religiously or morally neutral about them.

We have, for instance, allowed women to choose whether to murder their offspring, but this is not neutrality—in this, the state blatantly values personal autonomy and privacy more than it values love or the right to live. We have forced people to speak as though men are actually women or act as though two women can be married to one-another, but this is not neutral—it demands that Christians set aside their understanding of marriage and sex. Even something as simple as getting rid of blasphemy laws that respected the name of Jesus Christ was never “fair” or neutral—it only cleared the way for new blasphemy laws that respect sexual deviancy and other politically correct subjects du jour instead.

Christian nationalism is rising precisely because more and more Christians are realizing that we’ve been lied to on the matter. We were persuaded to set aside our heritage in public based on a faulty notion of neutrality and the expectation that everyone else would do the same. But everyone else has done no such thing, and we should never have expected or asked them to. We allowed our religious values to be replaced by others’ religious values and, unsurprisingly, have little to show for our foolishness.

If you Think Christianity Is Valuable, You’re a Nationalist

Christian nationalism is not an attempt to requisition the state to teach Christian theology—it would be even less competent at this than it is at all other types of education. Neither is it in any way an incitement to the largely hypothetical violence over which the statement’s authors wring their hands.

It is simply American Christians who believe that their religion is true and their nation valuable contending for their own convictions about goodness, truth, and beauty rather than for others’. We are not “merging” our two identities, as the statement alleges, but holding onto both of them in everything that we do.

Far from destroying American democracy and religious liberty, Christian nationalism embodies the very same spirit that built that heritage of ours in the first place.

Matthew’s writing may be found at The 96th Thesis. You can also follow him on Twitter @matt_e_cochran or subscribe to his YouTube Channel, Lutheran in a Strange Land.
“Memorial”by happyfunpaul is licensed under CC BY-NC-SA 2.0