Monday was a busy day for court rulings, and not only in Georgia. The U.S. Supreme Court had something to say about President Trump’s travel-ban-that’s-not-a-travel-ban, lifting the injunction against implementing the policy in many cases but waiting until October to hear the full case. The high court also ruled in an important decision in a case involving religious liberty.
The fact that the case known as Trinity Lutheran is considered a big religious-liberty case tells us much about how distorted our thinking, and jurisprudence, about free exercise and establishment of religion have gotten. Here are the basic facts of the case:
- The state of Missouri created a “scrap tire” grant program to help defray the costs for resurfacing playgrounds with materials made from recycled tires. The program was funded by a fee levied on new tire purchases (not general tax revenues). It has limited resources, so not all requests are fulfilled.
- A school in Boone County, Missouri, applied for a grant from the program. Its application wound up ranking fifth out of 44 applicants. Fourteen applications were chosen.
- The school in Boone County, which on the merits should have been one of the 14, wasn’t. Why? Because it’s run by the Trinity Lutheran Church.
In a sane world, this would have been a 9-0 case in which the state was ashamed of its argument that giving money to resurface a church school’s playground amounted to an unlawful establishment of religion. (Actually, in a sane world the state never would have denied the school’s application.) As it was, the fact it was essentially a 7-2 decision is somewhat heartening — although, as I’ll cover below, those two dissenting votes remain quite disturbing.
The tension between the Free Exercise and Establishment clauses for many decades was resolved in favor of the latter, with only some reversal in more recent years. This has led to such ridiculous situations as … a church school being denied a grant for resurfacing its playground simply because it’s a church school, not a secular school. The idea that this somehow amounts to government sponsoring religion beggars belief; it is rather, and plainly so, an example of government discriminating against a religious entity. But for the fact a church operates the school, it would have received the grant. That’s the basic definition of discrimination.
Here’s how the opinion, written by Chief Justice John Roberts, puts it (the references to McDaniel concern a 1977 case, McDaniel v. Paty, in which the court ruled a minister could not be barred from serving as a delegate to his state’s constitutional convention simply because he was a minister):
“[T]he Department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lutheran is free to continue operating as a church, just as McDaniel was free to continue being a minister. But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, McDaniel says plainly that the State has punished the free exercise of religion: ‘To condition the availability of benefits . . . upon [a recipient’s] willingness to . . . surrender his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.'”
To believe otherwise is essentially to believe that the government can do most anything to infringe on your free-exercise rights, short of barging in and stopping a worship service. (This is almost certainly why progressivist politicians such as Hillary Clinton have stopped referring to free exercise, or freedom of religion, in favor of the far more limited “freedom of worship.”) If you are excluded from an otherwise open, public activity or program simply because you happen to be religious, you don’t really have the right of free exercise.
If you want to see someone try to justify such an infringement, look no further than the dissent by Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg. Apparently, Sotomayor’s famous commitment to “empathy” does not extend to empathizing with a school whose leaders simply want a safer playground for their students, as long as the school in question is a religious one.
In fact, Sotomayor begins with a startlingly sweeping statement:
“To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”
Really? Set aside the overly broad assertion that this ruling means “the Constitution requires the government to provide public funds directly to a church” (rather, the ruling means the Constitution bars the government from discriminating against a church in an otherwise neutral public grant program). If you believe that the “separation of church and state” requires the government to discriminate against church schools in the funding of playground surfaces, you just might be committed to a principle out of all proportion to its original purpose.
This is the kind of thinking that, if indulged much longer by many more people, will lead to, say, the curtailing of tax exemptions for churches as non-profit entities — wrapped up in a faux concern for the integrity of the church. There is no reason to think a $20,000 grant for a playground surface will lead to someone’s being coerced into attending Trinity Lutheran, or a Lutheran church more generally, or a church of any kind, or a house of worship of any faith at all. Nor is there reason to believe a $20,000 grant will tempt a minister at Trinity Lutheran — or the Lutheran church in general, churches of any kind, or houses of worship of any faith — to adulterate their religious tenets. Such hijacking of either the public purse or the pulpit’s independence was the reason for the Free Exercise and Establishment clauses. We have strayed many miles from that purpose when we stand along the line Sotomayor would draw.