The Crumbling Wall James A. Davids J.D. Duke University School of Law President-Elect, Christian Legal Society Assistant Dean, Robertson School of Government, Regent University June 12, 2006

Thomas Jefferson’s metaphoric wall separating church and state lost another couple bricks recently when a federal appellate court in Philadelphia issued an opinion on the First Amendment.  Not a whimper was heard from those typically advocating for a high and impregnable wall (preferably with gun turrets).  The reason for the silence is simple – the state’s power grew at the expense of the church, and not vice versa.
The case involved Gannon University, a Catholic school of 3500 students located in Erie, Pennsylvania.  Like many private colleges, Gannon has a chaplain’s office which provides spiritual leadership and counseling on the campus.  Like all colleges, Gannon employs persons to carry out its educational mission, and as an employer, Gannon must refrain from employment decisions based on race, sex, handicap, ethnicity, age, and color.  The dispute centers on the liberty of religious organizations protected by our Constitution’s First Amendment and our nation’s laws seeking equality. 

The adage that bad facts make bad law is once again proven by this case.  In her complaint, a woman claims that Gannon hired her as chaplain, and she took the job on the condition that she would be judged on her merits and would not be replaced when the previous chaplain completed his studies in Italy.  She claims that although she did a good job, she was in essence demoted when the previous chaplain returned from Italy and was given a new position which was superior to hers.  She contends that this demotion was driven by the fact that she is a woman, and because she blew the whistle on sexual harassment at the university.

The trial court dismissed this complaint for employment discrimination on the grounds of the “ministerial exception,” which every other court of appeals has followed when considering a clergy’s claim for employment discrimination.  Under the “ministerial exception,” courts have refused to consider claims involving the church’s selection of clergy (its choice as to who will perform its spiritual functions) on the basis of the First Amendment.

Two of the three judges hearing this case in Philadelphia departed from the ministerial exception and refused to give the church a blanket exemption from employment discrimination laws for clergy.  The two judges agreed that courts should not inquire into clergy employment decisions based on a church’s religious belief, religious doctrine, or internal regulations.  These areas are “off limits” for the courts.  But in this case, the majority claimed, there is no issue raised by the university’s religious beliefs, doctrines, or regulations.  They noted that although Gannon is a Catholic university, it hired a woman as a chaplain, and therefore must have no religious objection to a woman holding this office.  To the majority, the church (through its affiliated school) cannot use the First Amendment to defend this sex discrimination claim filed by the chaplain.

One judge disagreed with the other two.  The dissenting judge wrote that the state should not interfere in a church’s decision of who will perform its religious functions.  This judge stated that in his view, the process of selecting a minister is itself a religious exercise protected by the First Amendment.  He noted that the minister is not merely an employee of the church (like a janitor), but is its public representative, its ambassador, its voice to the faithful, the “embodiment of its message.”  Accordingly, a state’s interference with the church’s selection of its clergy is a violation of the church’s right to free exercise of its religion, and entangles the state in the affairs of the church, both of which are prohibited by the First Amendment.

Compared to Europe, America’s churches remain vibrant.  One of the reasons cited for this comparative vibrancy is the lack of support, and therefore interference, by the state in church affairs. Unlike European churches, whose clergy’s salary is paid by the state, America’s churches do not live off public largesse.  To maintain strong churches, and therefore a strong public morality which, in the words of George Washington, is essential for the continued existence of our republic, the state must not interfere in church affairs.  The Philadelphia court’s decision provides grounds for continuing interference. 
Thomas Jefferson described his metaphoric wall separating church and state in a letter to Baptists in Danbury, Connecticut, who had written a letter to Jefferson expressing their concern that the election of Jefferson in 1800 would result in governmental interference with church affairs.  Jefferson assured the Baptists in his letter that the wall separating church and state would preclude federal government interference with church affairs.  This “wall,” of course, has been used in numerous instances by strict separationists to limit the impact of the church on public affairs.

Perhaps the advocates of strict separation between church and state do not truly like the Jeffersonian wall anymore. They may prefer something much more modern, like tire spikes.  Tire spikes are, of course, those mechanisms at car rental places which are accompanied by signs that warn drivers that backing up the car will puncture the car’s tires.  Tire spikes permit only one way traffic.  That’s what strict separationists appear to want – power and influence flowing to the state is good, but influence flowing to the church is bad.