Constitutional lawyer John Whitehead talks about legal strategy and civil disobedience. Which really put the padlock on the church

Pastor everett sileven has served two jail sentences and has had his church in Louisville, Nebraska, padlocked (and his church school closed down) because he refused to follow the law of his state. Nebraska law requires that all schools, including church schools, be licensed by the state and retain teachers certified by the state. Such schools must also teach a state-approved curriculum.

Sileven has said that he refused to follow any of these requirements because of religious beliefs he claims are rooted in the Bible and protected by the United States Constitution. Thus, two basic issues are raised by the Sileven situation: theological and constitutional.

Intimately related to Sileven’s defiance is the question of the state’s authority over what Sileven refers to as the “educational ministry” of Faith Baptist Church. Most Americans do not have problems with the church itself being free from government control. The questions and the legal issues arise when churches operate schools, claiming they are ministries of the church on the same level as other ministries (such as Sunday schools).

Biblically, can a church make the claim that its church school, which teaches such subjects as science and math, is a legitimate ministry and function of the local church? The fundamentalists answer in the affirmative, based on verses like 1 Timothy 3:15, which states that the church is “the pillar and ground of the truth.”

The fundamentalists take this to mean that the church can operate a school as one of its functions. But it is not as simple as that. Although the Old Testament Levites operated educational institutions, and some historical references record the operation of schools by the early church, both history and the New Testament do not clearly answer the church-school question.

Be that as it may, one cannot sidestep the issue of lordship upon which the Nebraska church has so staunchly resisted licensing by the state. Sileven’s religious beliefs concerning the school as a ministry of the church and against licensure of the school, as his jail terms evidence, are obviously sincere. Sincere religious beliefs are protected by the Constitution unless the state can show an interest of sufficient magnitude to override the religious beliefs.

The issue of licensure of church schools evokes varying responses among Christians. Some say the New Testament does not prohibit any licensing of churches or church schools. On the other hand, some argue that mere acceptance of a license for anything whatsoever is prohibited. Still others think that licensing should be accepted only in certain instances.

There is often inconsistency in practice on the licensure issue. Some pastors take a strong stand against licensure of the church and church schools, but accept a state license to perform marriages. Many churches that have taken similar stands have fire and health permits, employee identification numbers, and bus license tags, all of which are state licenses. Many Christian colleges that espouse an antilicensure position possess state charters (again, a form of licensure). Also, those Christian attorneys who proclaim (rightly so) that their profession is a ministry of God are licensed by the state to practice law. No matter what one’s view is on this subject, content control and the inherent right of the church to exist are the key issues that Christians must examine in licensure situations.

Content control by the state, in the form of approving or disapproving the content of the teaching of God’s truth, is prohibited by the Bible. The apostles were forbidden by the authorities to “teach in this [Christ’s] name.” Peter replied to the Sanhedrin: “We must obey God rather than men” (Acts 5:28–29).

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State control that threatens the inherent right of the church to exist is also objectionable. This would include such things as government attempts to define what is a true church. If the state proclaims by way of government definition that a church cannot or should not legally exist, then such government actions should be resisted.

In one sense, the right to exist is also a form of content control in that it is an attempt by the state to control how the church functions in proclaiming the truth. It is this type of control that churches should resist and not, as we will discuss later, such things as reasonable health and safety laws.

Although the state historically has viewed Christian resistance to state mandates or controls as political and legal concerns, it is essentially a theological matter. The issue eventually leads to the question of lordship: Who is lord over certain areas of life? Is it Christ or the state?

Lord means sovereign, God, absolute owner. For the true Christian, “Jesus Christ is Lord” (Phil. 2:11). This was the original confession of faith and the baptismal commitment of those who entered the Christian church.

Assuming that an educational institution is a legitimate ministry of the church, what is the state’s authority or jurisdiction with regard to the church and its ministries? Is the state lord?

Jurisdiction comes from two Latin words, jus, law, and dico, say. The one who has jurisdiction is the one who declares the law, whose word is the binding, authoritative word for that sphere of life and thought. The church is not within the state’s jurisdiction or area of control. It belongs to God. Christ is the head of the church and it submits to him (Eph. 5:23–24). This is essentially the biblical teaching on the separation of church and state.

It should be noted that the three terms—license, accreditation, and certification—most commonly associated with state regulation of church schools are jurisdictional terms: they raise the question of who submits to whom. The word accreditation comes from the Latin word credo, which means “I believe.” Certification derives from a Latin word meaning “certain.” And license is from the Latin word licere, which means “to be permitted.” All three terms also have religious overtones. They imply a verification, a declaration, that a certain thing is true. Further, they imply the permission to exist, issued by a lord or ruler to those who seek approval.

For the church to seek such approval from the state would seem to imply that the state, not Christ, is lord over the church, or that there is at least some type of shared lordship over the church. The Bible, however, teaches that there is no such thing as shared lordship. God’s jurisdiction is total (see Deut. 10:14; Ps. 24:1; Isa. 42:8; Matt. 28:18; and 1 Cor. 10:26).

There is, of course, still a place for the state. Although God possesses total jurisdiction, it must not be forgotten that God has instituted the state for the two-fold function of protecting the good of society and promoting justice (Rom. 13:4). Thus, the state is a legitimate authority, but not everything it does is necessarily legitimate. Here the statement of Peter quoted earlier is again applicable. When there is a conflict between God’s directives and those of men, we ought to obey God.

There is no example in the New Testament of Christians submitting to licensure of the church or any ministry of the church. Instead, we see Christians standing—as Peter did before the Sanhedrin—and proclaiming Christ’s lordship. Licensure also did not stifle the postapostolic church.

According to church historian R. J. Rushdoony, the early church came into immediate conflict with Rome because it engaged in several unlicensed activities. It held worship meetings without permits, and it collected abandoned babies (as part of its opposition to infanticide) and reared them. Such activities eventually resulted in the persecution of Christians.

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A consideration of licensure leads soon enough into the difficult thicket of church-and-state separation. Since the great majority of the private Christian schools are intimately connected with churches, the separation of church and state is brought to the forefront. Consequently, the First Amendment of the Constitution comes into play.

The U.S. Supreme Court has recognized in several key decisions that schools can legitimately be a function of the church. Of course, the question concerns whether or not the state can constitutionally treat the school ministry of the church differently than it does other ministries.

Some Christians argue that no differentiation should be made between a day school and other ministries of the church. They assert that this would be an admission that the day school is not a ministry on an equal basis with the other ministries of the church. Obviously, however, there is a logistical difference between a Sunday school, which meets once a week for a few hours, and a day school, which meets five days a week for eight hours a day. The fact that day school students are in the building many more hours during the week increases proportionately any health and safety risks.

This type of issue, however, has nothing to do with the key issue, content control, which was at the heart of the Nebraska case. The state of Nebraska argued successfully through the courts that it has a responsibility to see that its citizens are properly educated to function in society. To that end, the state sought to approve the curriculum of church schools, arguing that curriculum approval, licensing, and teacher certification are only “minimal intrusions” upon the religious practice of church schools.

The U.S. Supreme Court has consistently held that even minimal intrusions on religious practice must be justified by a compelling state interest. In other words, the state must show an interest of such a magnitude that it justifies not allowing an exemption for those whose religion the state regulation affects. The state must also demonstrate that no less-restrictive alternatives are available to achieve any compelling state interest it may have. Only then, it has been held, will the state regulation in question stand within constitutional parameters. In the past, this heavy burden on the state has worked to protect religious freedom.

In the case of a church school, the state’s compelling interest, if any, is whether or not the children are receiving a quality education, or at least an education that is comparable to that received by children who attend the public schools. It is the end result of education with which the state may be concerned, not curriculum details that it might regulate. As one Nebraska pastor correctly puts it, “The state says the proof is in the recipe. We say it is in the pudding.”

In the majority of cases that have gone to trial over church schools, the quality of education has never really been in doubt. In fact, in most instances, children attending Christian schools score higher on the standard tests than do students who attend public schools.

The strength of the compelling state interest test was, indeed, shaken by State of Nebraska v. Faith Baptist Church, the case involving Pastor Sileven. There was no evidence presented at the trial that the school was failing to provide a quality education. Essentially, the Nebraska Supreme Court upheld closing of the church simply because the school had failed to comply with the state’s regulatory scheme.

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A perceptive article by Timothy Binder in the Nebraska Law Review (Vol. 61, 1981) noted that the Nebraska Supreme Court failed to apply the constitutionally mandated “compelling state interest” test. Moreover, the Nebraska court did not review arguments for a less restrictive method of regulation. In effect, Binder wrote, the state’s will to regulate education overrode the parents’ fundamental rights in directing the education of their children. The court’s decision, Binder said, “constitutes a severe blow to religious freedom in Nebraska and is contrary to the free exercise test which has evolved through United States Supreme Court decisions.”

However wrong the Nebraska decision was in its result, the Nebraska court never had the benefit of hearing a key constitutional argument since Sileven’s attorneys did not press the First Amendment’s “establishment of religion” clause (see CT, April 10, 1981, p. 48). Under the establishment clause, the Supreme Court has held that the state cannot “excessively entangle” itself with religion.

Entanglement is an important weapon in cases where, as in Nebraska, the state seeks to entwine itself with religious institutions. For example, Nebraska state education regulations not only require church schools to seek approval through licensing and certification as well as approve the school’s educational programs, but they also require that the church schools furnish names and addresses of all students enrolled in the school. A key to proving unconstitutional entanglement is the fact that the state would keep a continuing surveillance over the church school. All the trappings of excessive entanglement were present in Sileven’s case, but not presented by his attorneys.

Sileven and his attorneys were against using the “excessive entanglement” defense because they believe it concedes that some entanglement between church and state is constitutional, as long as it is not judged excessive. However, an attack on excessive entanglement is a legal argument that technically does not concede the constitutionality of lesser entanglement.

Moreover, some “entanglement” (in the layman’s sense of the word) or involvement between the state and the church is an unavoidable fact of life. For example, churches need and use police and fire protection provided by the state. Sileven’s attorneys waived an important defense in not presenting this First Amendment issue to the Nebraska courts. It is simply indefensible not to raise every available legal argument supporting the position of the church or a church school.

The nebraska situation may merely be the tip of the iceberg. There are many pastors throughout this country who will resist the state with the same fervency that Sileven demonstrated.

A note of caution, however, must be sounded. Confrontation is not always the answer to unbiblical acts by the state. When confronted with unbiblical regulations, the first step should always be negotiation with state officials to alleviate, if possible, any problems. Second, before going to court or perpetrating civil disobedience, those involved should seek political change. Reasonable legislation can often head off church-state confrontation. Finally, litigation or civil disobedience should come into play only as a last resort (and after careful consideration and good legal advice).

The church must be wise in what it fights. Drawing the line on content control and the inherent right to exist is biblical. Some, however, have not been so wise as to fight the content control issues. They have objected to and contested in court the state’s authority to require safety and health in their churches and Christian schools, requirements that arguably fall under the state’s authority. As a matter of tactics, it is wise for churches and Christian schools not to struggle against reasonable state health and safety regulations.

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Finally, the church must not forget that it is to be a witness of Christ to the community at large. Christians must reflect God in their actions. As Francis Schaeffer writes, the “final apologetic … is what the world sees” in the church.

Does it glorify God, we should ask, for a Christian school to resist laws that exist to ensure safe conditions in its buildings? Should not Christians go the extra mile and be an example of what it means to operate healthy and safe institutions? No matter what constitutional precedent may be set, if a church or Christian school exhibits a bad witness in the process, we all lose.

John W. Whitehead, author of Schools on Fire (Tyndale, 1980) and an expert in church-and-state legal issues, is a practicing attorney in Manassas, Virginia.

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