RIP, Separation of Church and State

I talk with author Sarah Posner about how the Christian Right is getting everything they want.

Official White House Photo by Shealah Craighead

What’s left of the separation of church and state? The answer is, not much, and less all the time.

The following is an interview I conducted with journalist Sarah Posner, author of Unholy: How White Christian Nationalists Powered the Trump Presidency and the Devastating Legacy They Left Behind, about recent developments in the dismantling of wall between government and religion. You can listen here or on your favorite podcast app; just search for The Cross Section. I’ve also included a transcript below.

TRANSCRIPT:

Paul Waldman: Welcome to The Cross Section. I am your host, Paul Waldman. Let me tell you about a few items that were in the news in the last week or two:

• The Internal Revenue Service says that churches can now endorse political candidates, upending 70 years of established law.

• The Supreme Court ruled that parents can force schools not to teach their children from materials they claim violate their religious beliefs.

• The Supreme Court also ruled that Donald Trump can essentially dismantle the Department of Education, despite the fact that it was established by a law passed by Congress.

• The Federal Trade Commission recently held a workshop on the supposed dangers of gender affirming care, which you wouldn't think is the job of the FTC, while the Justice Department is subpoenaing doctors and health clinics that provide that care, which sure looks like a prelude to criminal prosecutions.

• And in the great state of Texas, Governor Greg Abbott signed a bill requiring the 10 Commandments to be posted in every classroom in the state. So at last, the young’uns in the Lone Star State will learn not to covet their neighbor’s donkey.

To talk about all this, my guest today is Sarah Posner, a journalist who has covered the Christian right for many years. Among her books are Unholy: How White Christian Nationalists Powered the Trump Presidency and the Devastating Legacy They Left Behind, and God's Profits: Faith, Fraud, and the Republican Crusade for Values Voters. Sarah, welcome to The Cross Section.

Sarah Posner: Thanks for having me, Paul.

Paul Waldman: Alright, I want to start with the Department of Education because if you just opened up the news and read about what happened at the Supreme Court, you would think that this is something that is really new to the second Trump administration. A number of states sued the Trump administration to stop them from dismantling the Department of Education. A district court judge put a hold on the actions that the Trump administration was taking and said that they had to rehire about half of the department’s employees that they were looking to fire. And the idea was that while this case is being adjudicated, the Trump administration is not going to be allowed to dismantle the Department of Education, which in fact is their explicit intent; it’s not even something that they are hiding. Trump in fact signed an executive order instructing the Secretary of Education to prepare for the shutting down of the department. Which would be illegal because this is a department that was established by Congress, and Congress would have to disestablish it if that's what they wanted to do.

But the Supreme Court stepped in on what's called the shadow docket, issuing an unsigned order overturning that stay that the lower court had put on the administration's actions and essentially saying, go ahead, you can start dismantling the Department of Education while this case gets adjudicated, which could take months or even years. And of course, by the time the case is finished, there may be no more Department of Education.

This is an education story, obviously, but it's also a religion story. And that's why I wanted to ask Sarah about it. Maybe you can start by just giving us some of the context about the problem that the religious right has had with the Department of Education, not just for years, but for decades.

Sarah Posner: The Christian right has always been opposed to the Department of Education. It's also opposed to large swaths of the federal government, or what they would call the federal bureaucracy, in addition to the Department of Education. But the Department of Education gets to the heart of why the Christian Right opposes the federal government telling them what to do. They believe that God granted jurisdiction to various power structures within our society: the church, the family, particularly the father at the head of the family, that God did not grant jurisdiction to some big federal bureaucracy.

The Department of Education in particular gets their goat because they believe that the government should not be telling them basically how to educate and raise their children. It is probably the most targeted in their mind of all the cabinet level agencies that they have long seen as something that needed to be eliminated because they would prefer that they could either educate their kids at home through home schooling or in Christian schools, or that they could have more control over their local school district by running for school board or getting the local Moms for Liberty to run for school board and fighting every progressive curriculum change at that level.

Paul Waldman: One thing that I feel like I've noticed, part of conservative Christian ideology is that they are a noble but beleaguered minority surrounded by a culture that scorns them and disdains their values, and oppressed by the government, but I don't know if they've ever had more power in modern times than they do right now. Are you seeing that there is kind of a new spirit among the Christian right, that they are sort of emboldened, that they feel like this is their moment to get victories that they thought would take forever or that they would never get at all? How are people feeling in that world right now?

Sarah Posner: I think that's absolutely right. They feel incredibly emboldened, and not just because of Trump being in the White House. Obviously they revere Trump. They believe that he delivered nearly everything they wanted in his first term, and he's delivering more in his second term. You hear a lot less about them having higher positions in his administration. You heard about a lot of that in his first. In his second term, it's a lot more of the sort of MAGA online conspiracy theorists who have top jobs in his administration, yet the Christian right is still getting a lot of what they want. They would love to see the Department of Education dismantled; the anti trans stuff they love to see; the Supreme Court is definitely delivering for them based on his stacking of it in his first term.

And I think that they feel like they have attained a level of power that even they recognize is historic, and I think they worry is fleeting. Which is why they want to try to do everything they possibly can before the next election. And another thing that I'd know along the way here that's important to their sense of being emboldened right now is the role of Speaker Mike Johnson in shepherding through Trump's agenda. They have one of their own in basically the third or fourth most powerful position in the country, and that is extremely important and valuable to them.

Paul Waldman: It's interesting that you say that there's a fear that this could be fleeting, and they have to accomplish as much as they possibly can. I think that liberals in a lot of ways got complacent over the last couple of decades. There was this feeling that the culture is moving in our direction, that our values are becoming accepted. Gay marriage is a good example: It went from being this idea that even in the gay community seemed like kind of pie in the sky, it could take forever. And then you saw the Obergefell case that legalized same sex marriage everywhere. And then you also saw just kind of a broadening acceptance in the culture of marriage in particular, but of inclusion of all kinds of families in the culture more generally. You saw gay couples on TV all the time, and there was this feeling that like, well, we kind of won this argument and it's done. And it does seem that people on the right who were not happy about that, I think a lot of liberals thought, well, they've just accepted it. They don't like it, but they know that they're going to have to live with it.

And it turns out that they didn't accept that. And they were waiting for a time when they could really start to roll back that progress. And it turns out that in 2024, they seem to have identified transgender rights in general and transgender kids playing sports of whom they're just a tiny number as a real wedge that they could use to pry open this issue again and use it to change all kinds of laws, change what happens in schools and really reverse a lot of that progress. Was that just a realization or was that something that people felt like, we're going to figure this out and be able to turn back that clock?

Sarah Posner: OK, so I would say that Trump's victories both in 2016 and 2024 were a result of having a black president, but they were also a result of Obergefell. Even before Obergefell was decided, and after the oral arguments made it pretty clear which way the Supreme Court was going — so that's 2015, right? They decided Obergefell in 2015. Even before the decision came down, the Christian Right was ready to denounce the affirmation of of same-sex marriage. And they were already portraying Obergefell as their next Roe v. Wade.

So remember, Roe v. Wade was decided in 1973 and overturned in 2022. That was a lot of years to keep your eye on that ball. And they kept their eye on that ball by working on multiple fronts. They succeeded at chipping away at abortion rights in the states, little things, parental consent, ultrasounds, the rest of it, TRAP laws, while they also worked on the political end of things, getting a majority in the Senate, keeping a majority in Senate, getting a Republican president, keeping their eyes open for vacancies, pressing for anti-Roe justices to be confirmed. So they're working on all of these fronts. They're also working on the court of opinion, court of public opinion front. So they're working on really pressing this pro-life label. They're pro-life. And all they care about is the babies and all of that. So they had all of these different parts of their machinery at work: public opinion, political, legal. And then they had all the lawyers in place to argue all the cases.

That's how they see Obergefell. We're 10 years out from Obergefell. They're thinking even if they have to work 20, 30, 40, 50 more years to overturn Obergefell, they're going to keep working at it. They realized, though, that unlike abortion, when they could talk about dead babies, with marriage equality was sort of a weird thing to say: “We don't like these families, we don't want people to get married.” They did slam and slander and smear same-sex couples, but I think they found it a little bit of a tougher hill to climb than talking about dead babies. I think the reason you saw the focus on trans issues starting around — that even started before Obergefell came down, the anti-trans bathroom laws and those sort of things started cropping up in state legislatures around 2013/2014. Because they knew that that was going to be the wedge issue that they could gross people out with, right? “Men dressed as women are going to assault your daughter in a public bathroom,” that sort of messaging. Or later, “A biological male is going to take your daughter's spot on the volleyball team.” All of these things are aimed at repulsing people or making them feel afraid. And this was part of the plan. They want to chip away at Obergefell. But it's a long way off. So they're doing these other things and particularly focusing on trans issues.

Paul Waldman: I think that's an important lesson that liberals can take. What you see there is a great deal of patience. They go into that conflict saying we have a set of goals and even if we experience some setbacks, we are going to look at this as a battle that could take decades. And the same is true of taking over the Supreme Court, which I always say is maybe the most successful political enterprise in American history. A few decades ago, conservatives said, if we can capture the courts, especially the Supreme Court, we will be able to do anything. And so we are going to invest hundreds of millions of dollars, decades of time, and we're going to get eventually to the place where we have an iron grip on the laws and the entire political structure of the country. Because the Supreme Court is the last word in so many places, and we're seeing it play out now. Right now they have a 6-3 conservative supermajority, and they can do anything.

Sarah Posner: I wanted to add that one more thought about what they did in the Department of Education case. It's highly irregular — the whole shadow docket thing is highly irregular. So the lower court had issued an injunction barring the dismantling of the Department of Education while the case plays out on the merits. Lower court judges are loathe to just issue injunctions. The plaintiff has a very high burden to meet there. They have to show that they would suffer irreparable harm if a preliminary injunction or a temporary restraining order weren't issued. So these are not just granted willy-nilly.

Typically, or how things used to work is, the Supreme Court wouldn't even take or consider a case until it had reached the merits phase, been completed in the trial court, the Court of Appeals ruled on it, it was like a final ruling, and then the Supreme Court weighs in. All this weighing in on these appeals that the Trump administration is doing from grants of TRO's or preliminary injunctions to basically say no, these TROs and preliminary injunctions don't count at all, even though the the District Court has reviewed all the evidence and heard oral argument and read all the briefs, and we're just going to like look at a few briefs and then just decide in secret that we're going to let our special boy do whatever he wants while the case case plays out in the lower courts.

This is highly unusual. The idea that the Chief Justice, who pledged to the Senate that his only job was to call balls and strikes and he was completely neutral. This gives away the game. They would not be doing this for President Joe Biden. They would not be doing this for President Kamala Harris. They're doing it because they believe in a very extreme form of executive power, and they want to leave that in place. But only for Trump. They would never do it for a Democratic president.

Paul Waldman: And they didn't. And the whole point of a temporary injunction is that it freezes the status quo, right? It says we're not going to allow this change while the case gets heard on the merits. But now what we see is that the Supreme Court is saying that we're not going to allow the status quo to be frozen. What has to be maintained is Donald Trump's ability to do whatever he wants, and he's going to get to do what he wants and then eventually the merits of the case will be heard, by which time in a lot of cases, as I said with the Department of Education, it's probably going to be too late. There will be functionally no Department of Education by the time the merits are heard.

I heard Steve Vladeck, who wrote a book about the shadow docket, say the other day that there have been 15 cases in which the Supreme Court has issued on the shadow docket an emergency ruling in cases where there was a temporary injunction against the Trump administration, and the administration has won all 15. They are 15 and 0. So obviously they are there to say that — maybe it's not in every single case that the administration has tried, but whenever they see something that's important to them, they're going to step in and rule in favor of the administration.

And this is what burns me up so much. People have heard me say this: They're doing it for this guy. The one who is the most likely to abuse his power, just as they did with the immunity case. Somehow we managed to survive 250 years without presidents having immunity from prosecution, but they have to step in and give immunity to this guy, the one who is most likely to commit crimes of any president we've ever had.

Sarah Posner: Yes. And they also do it without any explanation as to why they decided this way, it's just an unsigned order. There's no reasoning, no rationale provided to the public as to why they're letting the executive branch do whatever it wants with a congressionally mandated and taxpayer funded department. It's really outrageous. I think if more people understood this, and I think probably not that many do because polling shows that not that many people pay close attention to what the Supreme Court is doing, but I feel like if you had done Schoolhouse Rock on the separation of powers and you understood what was happening here at the Supreme Court, you'd be pretty pissed.

Paul Waldman: I want to ask you about the IRS ruling. So this did not get all that much attention. But there's this law called the Johnson Amendment. I think it was passed in 1954?

Sarah Posner: That's right.

Paul Waldman: And it says that houses of worship, churches, synagogues, mosques, cannot endorse political candidates. And we all know that there is a lot of political organizing that happens around houses of worship, both among Democrats and Republicans. Black churches famously do their “Souls to the Polls” things where they organize people to take them to vote. But I think there's a general agreement that it's really not the kind of thing we want to have your pastor, your rabbi, your imam, whatever it is, go up and say “This is who you should vote for.” That's a line that it would be good to maintain. And it hasn't really stopped the religious organizations from doing the kinds of political work they want to do to just draw that kind of a line around it. Well, that line now no longer exists.

The IRS issued this ruling. I want to read a line from it. They said that “communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith do not run afoul of the Johnson Amendment as properly interpreted.” So basically what they said is, it’s still law, but if the minister wants to get up and say “Vote JD Vance 2028” then that's OK, because it's the sort of normal thing that happens in a church through their normal channels of communication.

But I saw that and I said, well, OK, it's one thing if the pastor in a little church says, I want you to vote for my favorite candidate. What about, say, Joel Osteen, who has a megachurch with 10s of thousands of people who come, and TV shows, and a YouTube channel. Those are his normal channels of communication. If he goes on his YouTube channel and says vote for JD Vance, I guess that's OK too. And what if some billionaire who looks at that and says, well, Minister Osteen is one of the most influential pastors in the country. I'm going to give him millions of dollars to put on a show about Vance ‘28, and that'll just be the normal communication channels of his church, and that will be a tax deductible contribution. And that line that we used to have has just been completely obliterated. Do you think that's what's going to happen?

Sarah Posner: I have a slightly different take on the whole thing.

Paul Waldman: Not as catastrophic as mine?

Sarah Posner: Yes, but only because the whole system is already so corrupted, I'm not sure it's going to make a gigantic difference. So the Christian right has complained for decades that the Johnson Amendment violates their First Amendment rights. They claim that it's stifling their free speech that the pastor could not stand in the pulpit and say “Vote for Donald Trump.” And so this was another mechanism for them to claim that the big bad government in Washington was oppressing the free speech and religious freedom of conservative Christians around the country. Sometime during the Obama administration, the IRS basically decided to stop enforcing the Johnson Amendment at all. I think the last time somebody had their tax exemption revoked was when Bill Clinton was president. It's been a long time.

Now I don't think that making your tax exemption contingent on not turning your church into a political campaign rally is a First Amendment violation. However, I know lawyers and First Amendment people who do think it's a First Amendment violation. So it was kind of contested for a long time. Then the IRS was kind of like, OK, we're not even going to deal with this. We're not going to trouble ourselves with it at all or get into a big giant fight by initiating an investigation of some prominent pastor. And the truth is that because someone like Robert Jeffress, who technically speaking could not stand in his pulpit at First Baptist Dallas and endorse Donald Trump, was going on the campaign trail with Donald Trump and saying prayers with Donald Trump on the stage. So the difference between him standing in his pulpit and saying that and going to Sioux Falls, Iowa and saying it there, I mean like I don't know. And then he would have events featuring Trump where he didn't necessarily say “Vote for Donald Trump,” but he had the 4th of July where they would have this big patriotic shindig inside his church and Trump would be there. So he has claimed that the IRS, under Biden, did investigate him. But he never lost his tax exemption. He claims that he just had to pay a lot of legal fees.

So here we are, some billionaire could have been giving his church lots of money. And he was basically endorsing Trump on TV, at campaign rallies; even under the Johnson Amendment they're allowed to go to the Denny's across the street and turn on the loudspeaker and endorse a candidate. So it was a little bit artificial. I did notice that Paula White, who is Trump's faith advisor and runs this organization called the National Faith Advisory Board, which kind of grew out of White House faith office in Trump's first term, and it's sort of like a separate organization from the government, they send out this periodic newsletter and they told people in the newsletter: Don't use church resources to endorse a candidate. It's OK for the pastor to stand in the pulpit and say it, but don't use the church's finances to do it. And I thought that was interesting, that they understood the directive from the IRS to not include using their financial resources to endorse a candidate. Now, I doubt that the Trump IRS would go after a Trump supporting church, but I thought it was interesting that even they were saying don't spend money on it.

Paul Waldman: That is interesting, and maybe they feel like there could be a backlash if they get too explicit. I did see one poll, I think it was from the Pew Research Center, that showed that the vast majority of people don't think that their own houses of worship should make endorsements. And maybe they're sensitive to that. They don't want to go whole hog and produce their own backlash. I mean, after all, these are people who are very attuned to the politics of backlash, how it can be wielded for them and against them.

Sarah Posner: I actually think that there are a lot of people in the pews even in some evangelical churches who would rather have church be church. They're very pro-Trump, they're very Republican, but they would rather church be church. They want a Bible lesson and a sermon, they don't want it to be all campaigning.

Paul Waldman: Interesting. I wonder if you could talk a bit about what you see as the kind of vision that the Christian right is now working toward. You have all of these specific cases that have gone to the Supreme Court, where they've mostly gotten wins. Not every time; there was a recent case that Justice Amy Coney Barrett recused herself from about whether Oklahoma could have a religious charter school, and it was a four to four tie. And so the lower court decision stood, and Oklahoma, for the moment anyway, cannot set up a religious charter school. So they haven't won every time, but the vast majority of the time they win in cases like the praying football coach and stuff like that, where each individual case may not have dramatic practical consequences immediately, but you kind of have this accrual of widening the space for entwining the government and religion.

And I see things like the War on Christmas, where what really has a lot of people in the Christian right mad is religious pluralism, and the public indications of religious pluralism. What does it mean when a department store puts up a sign that says “Happy Holidays”? Well, it means that they're saying that even though the majority of Americans are still Christian, we have a very diverse society and we want to reflect that by having some kind of inclusive message on the banner outside the store in December. Rather than just saying “Merry Christmas,” which is exclusionary to the Jews and Muslims and Hindus and atheists and everyone else, we're going to have a more inclusive message. And when your own religious beliefs have been the default forever, that feels very oppressive. It's a change that you want to undo. So I wonder, do you think that what their kind of ultimate vision of what American Society looks like is kind of a rollback of that sort of pluralistic default into a more Christian default, whether it's in what the government does or how commerce works? What is the societal vision that they are working toward?

Sarah Posner: Well, they believe that God intended America to be a Christian nation. That changes that mostly took place in the second-half of the 20th century eroded the country's Christian foundation, and that it's their political and religious duty to restore America's Christian heritage. So that plays out in the public square with the War on Christmas, but more ominously, has played out on the legal front by the 60, 70 year dismantling of the separation of church and state, another area in which the Christian Right has had a decades long legal strategy, to undermine the separation of church and state and elevate the idea of religious freedom for Christians as the preeminent meaning of the religion clauses of the First Amendment. And they have been wildly successful on that front. There's basically, legally speaking, not much left of church date separation, the Coach Kennedy case being one of the more recent nails in that coffin. And there's been a wild expansion of the free speech and freedom of religion rights and expansion of those rights for conservative Christians or for conservative religious actors who, say, oppose abortion or oppose LGBTQ rights.

So in the recent case that the Supreme Court decided this term involving the LGBTQ inclusive books in the Montgomery County Public School system in Maryland, the court basically held that these parents, their religious rights, their religious freedom, was violated by not being able to opt their children out of lessons involving books with LGBTQ characters or LGBTQ themes. And when you think about the ramifications of it, it's a really bonkers decision. Because then what is going to happen in public schools? Parents of other religions are going to say I don't want my kid learning about you, name it, and so you have to give me an opt out.

And where are the right-wingers going to go on this? Are they going to say I don't want my kid to learn about vaccines? I don't want my kid to learn about infectious diseases? It has a lot of ramifications, but it brings us back to some of the things we were talking about before, this idea that Christian parents need to exempt themselves, have an actual religious political duty to exempt themselves from these mandates from the big bad federal government or their big bad school district that undermine what they would say is not only their religious freedom, but their parental rights. And so this is where all the anti-trans mania comes from. It's where the assault and the Department of Education comes from. It's where the quest for r or religious charter schools funded by the state comes from and it's where that Montgomery County case came from. It's all kind of connected together in this idea that the government is bad because it infringes on the family’s God-given duty to educate their kids in their religious beliefs without interference from the government.

Paul Waldman: Do you think that they're going to try to challenge the Supreme Court decision outlawing prayer in schools? Teacher-led sectarian prayers.

Sarah Posner: Yes. Oh yes.

Paul Waldman: Because you do hear a lot of people who say, that's when this society really started to go down the tubes.

Sarah Posner: The jurisprudence is headed in that direction to bring this to another full circle on something that we've been talking about today, I first met Mike Johnson, now the Speaker of the House in 2006 or 7 when I was writing a story about how the Alliance Defending Freedom, that major Christian right legal powerhouse, the Christian right’s, ACLU, when I was writing a story about how they were aiming to dismantle the separation of church and state, and Mike Johnson was working for them. And I interviewed him for that story, he was all in on this idea that the separation of church and state is a myth and we need to get rid of it, and the jurisprudence is all wrong and it violates our Christian founding and our Christian beliefs and all of that. And so when he became speaker of the house, I thought, OK, it's not just where the Supreme Court is going, but I'm sure it's where the Republican Party is.

Paul Waldman: And he certainly has not moderated any of those beliefs, even though he doesn't talk about them maybe as much as he used to.

Sarah Posner: Right, he's pretty much dedicated himself to being Trump's lackey. So that is kind of his main agenda right now. But when he talks about a Christian nation or religious freedom, those kinds of buzz words, that's exactly what he's talking about. He's talking about a country in which conservative Christians like himself should have more freedom and the supposed separation of church and state violates their freedom. This is the government infringing on their religious beliefs by not letting them, you know, have a 10 Commandments or a nativity scene or pray in school or on the 50 yard line.

Paul Waldman: I think that maybe it's not so bad if Texas, and I think it's Arkansas and Louisiana that have also passed laws about the 10 Commandments, if they put them up in public schools because there are few things less persuasive to a teenager than a flyer tacked up on the wall of their classroom. Even if the message that you should not covet your neighbor’s donkey is an important one for all young people to hear. All right, Sarah Posner, thank you so much for joining me. We will check back in the next time the Supreme Court takes a sledgehammer to some other pillar of the separation of church and state. Thank you so much for joining me.

Sarah Posner: Thanks for having me.

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