I know I’m going to get some grief for this, but I honestly don’t see why some people are having so much trouble with the idea that houses of worship are (1) eligible for the Payroll Protection Program (PPP) and (2) able to use money from PPP loans to pay their clergy. Other, of course, than a kind of knee-jerk reaction to the idea that religious organizations would receive any kind of assistance—even assistance that fulfills a secular purpose and is also available to purely secular organizations—from the government.
The argument seems to be pretty simple: using PPP funds to pay clergy is using taxpayer money to fund religious practice, which is, in some way, a violation of the First Amendment’s establishment clause. Unfortunately, the ‘in some way’ in that argument is doing a lot of work. It’s unclear to me how this violates the establishment clause or any other First Amendment principles. And here is why:
First, it’s well-established that houses of worship are and should be subject government regulation. And the general rule is that such regulation does not violate the free exercise clause as long as there is an overriding secular purpose for the regulation. So, for example, the church I serve must meet building codes, abide by noise control ordinances, pay minimum wage, and so on. In face, Americans United for the Separation of Church and State (which argues that houses of worship should not be eligible for the PPP, or, at least, for PPP loan forgiveness for that portion of the loan that goes towards clergy salaries) also argues, rightly, that houses of worship should be subject to bans on large gatherings. Broad regulations with secular concerns are and should be applied to houses of worship.
But that must also work the other way around. The PPP is available to small businesses who qualify for the Small Business Administration’s (SBA) 7(a) loan program. It is also available to 501(c)3 organizations, 501(c)19 organizations, and tribal business concerns, none of which are normally eligible for SBA 7(a) loans. Houses of worship are generally covered under 501(c)3, although there are some special considerations (you can thank the long history of First Amendment interpretation for that). Letting houses of worship make use of the PPP is, effectively, treating them like other 501(c)3 organizations. And, personally, that is something that I wish we would do more of.
The PPP his broadly applied and has a secular interest. That it’s broadly applied is obvious. Again, it is available to small businesses, 501(c) organizations, 501(c)19 organizations, and tribal businesses. It also has a secular interest: keeping people employed and able to participate in the economy (such as it is). That interest is present whether or not any given employer is religious and whether or not any given employee is clergy. In this regard, it doesn’t seem any different from any other government program (or regulation) that is broadly applied and has a secular purpose.
Second, it is also well-established that there is a general desire to avoid excessive entanglement between the government and religious bodies. One kind of excessive entanglement is the government being in the business of deciding what counts as a religious organization (or, for that matter, a house of worship). While I certainly acknowledge that most of us know a house of worship when we see one, there are plenty of edge cases.
For example, imagine a church that has worship once a week with an average attendance of around 20, but that also operates a community kitchen that provides food for 100 people every week. That church is religiously motivated and is also serving a purpose that could be understood as secular. Should that house of worship—which is mostly a community kitchen—be eligible for the PPP or not? And who should make that decision? And do we want the SBA in the business of making that decision?
And, of course, there are cases that are further from the edge, but still raise questions. What about the ordained executive director of a religiously affiliated 501(c)3 organization that exists mostly to fulfill a secular purpose? What about a religiously motivated ordained staff member at a secular 501(c)3?
It might seem like nitpicking, but these kinds of carveouts for religious organizations generally—or houses of worship specifically—are always complicated. And trying to apply them to a time-sensitive emergency program makes it even more difficult than normal.
Overall, I simply don’t see how allowing houses of worship to use the PPP to keep their custodians—or, for that matter, their pastors, rabbis, or imams—employed presents a compelling threat to the First Amendment. If anything, a religious carveout seems like it would raise more questions than it would answer.