Americans for Religious Liberty has joined six organizations (American Jewish
Committee, Americans United for Separation of Church and State, Baptist Joint
Committee for Religious Liberty, Hadassah, The Interfaith Alliance Foundation,
and the Hindu American Foundation) in filing an amicus brief on April 16 urging
the U.S. Sixth Circuit Court of Appeals in Cincinnati to overrule a lower federal
court decision and sustain the principle that government funds may not be used
for direct religious purposes.
The Eastern Michigan district court held last year in American Atheists, Inc.
v. Detroit Downtown Development Authority, 503 F. Supp. 2d 845, that public funds
could be used to repair places of worship.
The brief affirms:
"The lessons of history are compelling: Governmental aid to construct and maintain
houses of worship degrades religion and distorts government.
The Founders also recognized that freedom of conscience is a prerequisite to
harmony in a pluralistic society, and that religion flourishes best where government
interferes with it least. And so, the Establishment Clause’s prohibition against
using public money to maintain churches was born as much out of the desire to
preserve the independence and robustness of religion as it was out of the aim to
protect government from religious encroachments."
Furthermore, "the Founders’ principal bulwark against religious degradation and
sectarian strife was the prohibition against public funding of churches."
It is incontrovertible that the "Establishment Clause’s prohibition against funding
for religion safeguards religious freedom" and that the Michigan decision "is
inconsistent with fundamental Establishment Clause principles and the strict legal
rules that protect them."
The brief notes that "the Supreme Court has forbidden provision of money for buildings
even for institutions that are not pervasively sectarian if there is any risk that
the facilities will ever be put to religious uses. And if government may not pay
to construct buildings, the Supreme Court has reasoned, it may not pay to repair them."
The brief reminds the appeals court that the "grant recipients are not just religiously
affiliated but are full-fledged churches."
The decision, therefore, "is thus irreconcilable with the First Amendment’s fundamental
aims to ensure both that government does not become corrupted by playing favorites
among religions, and that religion does not become degraded by feeding at the public trough."
The brief also argues that the lower court’s attempt to "dissect church buildings into
religious and secular components is administratively unmanageable and would excessively
entangle government with religion."
The lower court ruled that icons or symbols could not be funded by taxpayers but that
buildings and parking lots could be.
"Deciding which portions of a church are religious and which are secular requires delving
into the religious doctrines of each denomination to determine the theological significance
of the church, synagogue, temple, or mosque’s structure as a whole, and the spiritual
meanings and messages of each part."
Because churches might choose to secularize their buildings to receive public funds,
the lower court ruling "is thus deleterious to the freedom of conscience that the First
Amendment was intended to safeguard." In addition, "the decision creates financial
incentives for religious institutions to abandon aspects of their architecture that
have religious significance. When aid is available for what looks nonreligious (or
more palatably religious) to a government official, the result is not just favoritism
and religious discrimination, but also pressure on religious institutions to conform
their buildings’ spiritual messages to those that satisfy officials’ predilections."
The brief continues, "Put simply, houses of worship are as much a symbol of particular
religious doctrines as they are a venue for religious activity. Reducing a church or
synagogue or mosque or temple to an agglomeration of religious and secular elements
fails to recognize what makes that structure unique and uniquely religious. It is an
affront to those who believe that the form of their house of worship embodies or
reflects their faith, and an absurdity to those who do not."
By attempting to draw a fine line between religious symbolism and secular architecture,
the district court decision "creates a de facto preference for denominations that
prohibit or disfavor iconography over those that employ it." This preference could lead
to favoritism or discrimination. "For the only way to subdivide religious and secular
without intrusive, entangling inquiries into church doctrine would be to make
uninformed, standardless determinations that what looks religious, is religious.
So the approach favors, with easier access to governmental largesse, those religions
that eschew iconography as idolatry (such as Judaism and Islam) or as a distraction
from prayer (such as Quakerism), as well as those that favor plain, humble
architecture as signifying how one should approach the divine (such as congregationalist
Protestant denominations). Conversely, it disfavors faiths that assign iconography an
important role (such as Catholicism and Greek Orthodoxy) and those that favor lavish
decoration as a way to celebrate or commemorate the divine (such as Jainism). In
preferring some faiths to others, the decision fails to heed the Founders’ concern
with society’s becoming a battleground for religious denominations competing for
The brief concludes, "What is at stake in this case is far more than a few dollars
for re-caulking brickwork and stained glass." What is at stake is the preservation
of the First Amendment, religious harmony, and the independence of religious
institutions from the state.
The brief was written by Philip W. Horton, Kimberley A. Isbell, and Eric T. Rillorta
of the Washington, D.C. law firm of Arnold & Porter.
ARL president Edd Doerr haled the brief as "a brilliant defense of one of the
country’s most important founding principles, religious liberty through separation
of church and state." Doerr also praised the brief for "representing the broad spectrum
of America’s religious diversity." The brief, he added, builds on the view expressed
by Justice Sandra Day O’Connor in her concurring opinion in McCreary County,
Kentucky v. ACLU of Kentucky, 545 U.S. 844 (2005) at 882:
"At a time when we see around the world the violent consequences of the assumption
of religious authority by government, Americans may count themselves fortunate:
Our regard for constitutional boundaries has protected us from similar travails,
while allowing private religious exercise to flourish. . . .Those who would
renegotiate the boundaries between church and state must therefore answer a
difficult question: Why would we trade a system that has served us so well for
one that has served others so poorly?"